Volume 30, Number 9 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
Court orders more study of online records access
moratorium on electronic access to
court records will remain in effect while
unresolved issues are studied further,
according to an order by
the Florida Supreme Court. C O
In the meantime, Manatee -
County will be home to a
one-year pilot project that could become a
TAMPA Media General Inc.,
parent company of The Tampa
Tribune and WFLA-TV, successfully
challenged a judge's sealing of pre-
trial information without a public
The information was gathered in
preparation for the murder trial of
David Lee Onstott. Onstott is accused
of killing Sarah Michelle Lunde, 13, in
Circuit Judge Ronald N. Ficarrotta
sealed the pre-trial information and the
request filed by Onstott.
While the ruling does not mean
The moratorium was imposed in 2003
and is set for review in July 2007. It
allows online access to dockets, calendars
and certain records, such as those related
to cases of "significant
R T S public interest" or cases
in which a state agency is
Among other things, the justices are
still concerned with privacy, identity theft,
the documents will be released to the
public, it does allow Media General the
opportunity to argue that they should
The 2nd District Court of Appeals
suggested the trial court direct Onstott
to file a motion that states the basis for
keeping particular information secret
without revealing the information he
wants exempt from pre-trial disclosure.
Media General would then be
allowed to participate in a hearing
on the matter, and the trial court
could decide whether to release the
fees for access and which Public Records
Law exemptions to apply to court records.
The Committee on Privacy and Court
Records submitted its final report and
recommendations to the court in August
2005. The Court has ordered that a new
committee, the Committee on Access to
Court Records, be formed to implement
and further study several of the first
BATON ROUGE, La. The Federal
Emergency Management Agency (FEMA)
reversed a policy restricting media access
to its trailer parks.
Louisiana FEMA official James Stark
told members of the Baton Rouge press
that in response to criticism, a new policy
"will allow media full access to the group
site trailer parks" without a FEMA escort.
Journalists who wish to enter the
FEMA-funded trailer parks and interview
residents must first present "valid media
"I hope this is the first of many policy
reversals from FEMA regarding its
relationship with the public," said U.S.
Rep. Charles W. Boustany, R-Lafayette.
Flagler Beach eases public comment regulations
FLAGLER BEACH The city the "comments not on the agenda" portion not trying to go home early," Feind s
commission has adopted new rules that of the meeting. The new rules will also Chairman Ron Vath, the only
will allow the public to comment more allow three-minute comments on each commissioner who voted against the
frequently at commission less-restrictive policy, sa
meetings. FIRST AMENDMENT there were already check
Flagler Beach residents have FI L AMV NJLN balances in place to prev
traditionally been allowed a one- stifling speech.
time, three-minute limit to comment on general business item. Commissioners in the nearby towr
non-agenda items, and a similar restriction "I believe that if people come to the Ormond Beach recently enacted a po
for each issue on the agenda. meeting they should be allowed to speak," restricting public comments, allowing
The commission voted to allow
residents to speak for three minutes on
each issue they choose to bring up during
said Commission Vice Chair John Feind.
"We're not trying to stifle people, we're
not trying to cut off the debate and we're
each citizen the opportunity to make
the same remarks at no more than two
Media General wins hearing
before sealing of documents
FREEDOM OF INFORMATION
Archive challenges CIA fees
WASHINGTON, D.C. The National
Security Archive filed suit against the
Central Intelligence Agency, challenging
the agency's fee practices for records
The Archive, a non-governmental
research institute located at George
Washington University, has been
considered a "representative of the
news media" by the CIA since a 1990
court decision. Under the Freedom of
Information Act, journalists pursuing
news are charged only copying fees.
In 2005, the CIA began charging
the Archive additional fees and
determining whether it was a news
media representative based on individual
requests. The CIA applied criteria
for favorable fee treatment that it
promulgated in 1997, according the
The new test required the requests
concern current events, interest the
general public, and "enhance the public
understanding of the operations or
activities of the U.S. government."
For the past 15 years, the CIA had
a policy of presumptively waiving
additional fees for news media
representatives, rather than evaluating
The CIA charged additional fees for
42 of the 45 requests submitted by the
Archive between August 2005 and March
2006. For example, it did not consider
requests for biographical information
about certain Taliban members "current
Resolution condemns media
WASHINGTON, D.C. The U.S.
House of Representatives passed a
resolution condemning the media for
revealing a covert government program
to track terrorist financing, saying the
reports "placed the lives of Americans in
danger." No media outlets were named in
the resolution, which passed 227-183.
But The New York Times and other
publications had previously reported on
the Terrorist Finance Tracking Program.
No\\ the terrorists are well-informed
of the details of our methods and will
find other ways to move money outside
of the formal financial system," said Rep.
Michael Oxley, R-Ohio.
The Times defended its reporting.
"We have on many occasions withheld
information when lives were at stake,"
said Bill Keller, executive editor.
"However, the administration did not
make a convincing case that describing
our efforts to monitor international
banking presented such a danger."
FIRST AMENDMENT CONTINUED
Candidate barred from city, contacting officials
ALACHUA- A University of Florida
doctoral student and instructor who is
also a candidate for the Florida House
has been banned from entering the city of
Alachua or contacting the city's elected
officials or employees. Charles Grapski
will only be allowed to go to his home
there, according to The Gainesville Sun.
Grapski was arrested in May after
he went to the Alachua City Hall for
public records related to the city's April
election. City Manager Clovis Watson
accused Grapski of recording him
without his knowledge. Grapski denied
Resident seeks injunction against
LONGBOAT KEY A Longboat Key he is away from home, according to the
resident is seeking an injunction against Sarasota Herald-Tribune. After three
a free weekly newspaper to stop it from phone calls and several e-mails to the
delivering the paper to his house. Lee paper, Pokoik e-mailed its editor and
Pokoik said he called and e-mailed the publisher in November 2005. He told
Longboat Key News in an effort to stop publisher Steve Reid that it would cost
delivery, but that didn't work. $15 each to remove each paper. When the
Pokoik said a pile of newspapers on paper was delivered five more times over
his driveway could invite thieves when the next few months, Pokoik filed a small
the allegation. He was released on his own
recognizance, but a complaint of disorderly
conduct at a city meeting prompted
prosecutors to seek a revocation of that
release. Circuit Judge Peter K. Sieg imposed
the geographical and contact restrictions at a
hearing on the revocation issue.
claims action against the newspaper for $60.
Pokoik is now seeking an injunction.
The town gets few complaints on the
issue, according to Longboat Key Town
Attorney David Persson. A town can't
require the newspaper to get permission
to deliver, because that would be an
unconstitutional ban on freedom of
expression, according to Mr. Persson.
2 The Brechner Report September 2006
SAN ANTONIO The Department
of Defense is funding a $1 million study
of possible changes to the Freedom of
Information Act that would prevent
terrorists from accessing sensitive
The yearlong project will examine
federal and state access laws passed
since the Sept. 11, 2001 terrorist attacks.
In particular, the project will study laws
aimed at keeping information from
"The mission is to balance increase
in security with civil liberties, which are
precious," said Jeffrey Addicott, head
of the Center for Terrorism Law at St.
Mary's University School of Law.
The law school will carry out the
study, with an end goal of producing
a model statute for Congress and state
legislatures to consider.
Addicott, a former legal adviser
in the Army Special Forces, said he
did not know of any instances where
open government laws were utilized
by terrorists to gain infrastructure
information. But he said he believes it is
inevitable terrorists will do so.
FDLE launches inquiry in Yankeetown dispute
YANKEETOWN Gov. Jeb Bush
declared a state of emergency in
Yankeetown, where a dispute over
development has virtually shut down the
Three of the five town council
members, as well as other key town
workers, have resigned.
Prompted by residents concerned with
City pays for
DEERFIELD BEACH City
commissioners voted to pay the legal fees
of a fellow commissioner who Deerfield
Beach residents are trying to remove
Steve Gonot is facing a second recall
attempt by residents who allege the
commissioner violated the Sunshine
Law by meeting privately with another
commissioner about a fire pension board
Gonot denies the allegation, and the
State Attorney's Office did not find any
evidence to support the claim.
Gonot spent $7,000 in legal fees
defending himself against the first recall
effort. That effort failed after organizers
gathered 1,329 petition signatures but
missed a filing deadline.
Brechner Center for Freedom of Information
3208 Weimer Hall, PO Box 118400
College of Journalism and Communications
University of Florida, Gainesville, FL 32611-8400
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Christina Locke, Editor
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The BrechnerReport is published 12 times a
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Foundation The Brechner Report is ajoint effort
of The Brechner Center for Freedom of Information,
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Communications, the Florida Press Association, the
Florida Association of Broadcasters, the Florida Soci-
ety of Newspaper Editors and the Joseph L Brechner
actions by town officials, the Florida
Department of Law Enforcement has
launched an investigation into possible
Residents claim the town mayor and
others threw away public documents in a
recycling trash bin outside town hall.
Those documents, some shredded,
were turned over to the FDLE. The
FDLE has also removed computers from the
The FDLE will not determine whether
criminal activity occurred, but will turn
evidence over to the State Attorney's Office
to make that decision.
The controversy in Yankeetown stems
from a proposal by developers to build a
resort hotel on the Withlacoochee River.
No wrongdoing found in Monroe
MONROE COUNTY A four-
month investigation into alleged
Sunshine Law violations by Monroe
County commissioners resulted in no
evidence of wrongdoing, according to a
State Attorney's Office report.
The firing of the county attorney
at a February meeting prompted the
investigation. Richard Collins was
fired at the meeting after the action was
added to the agenda at the last minute.
Commissioner George Neugent
accused three commissioners of
discussing the matter before the meeting.
Those commissioners denied that
The investigation involved interviews
with the five commissioners and other
county employees. E-mails, cell phone
records and other communications were
The State Attorney's Office also ran
paid advertisements in local newspapers
asking for any information related to
potential Sunshine Law violations by the
Council members appeal ruling
BARTOW Members of the Polk
County Opportunity Council (PCOC)
have appealed a county judge's ruling that
they were guilty of violating the Sunshine
Judge Anne Kaylor ordered each
board member to pay $250 for the civil
infraction and $28.60 in court costs.
The charges stemmed from a
September 2005 closed meeting where
the council members discussed the former
PCOC executive director's acceptance of
a controversial training trip to Las Vegas.
The closed meeting took place during
a recess of the regular meeting. Council
members returned to the regular meeting
and voted to give the former director a letter
On appeal, the members maintain that
neither they nor the PCOC are subject
to the Sunshine Law. The appeal brief
describes the PCOC as an "independent
contractor" for the Florida Department
of Community Affairs, according to The
The PCOC is a nonprofit agency that
aims to help the area's poor with its $13
million annual budget.
Five accused of Sunshine offense
ORCHID Five current and former
town council members are accused of
violating the Sunshine Law by allegedly
excluding town employees from public
The non-criminal offenses carry fines
of up to $500 each. They stem from a
2004 budget workshop during which
the then-town manager was asked to
leave while his salary was discussed.
In December 2005, the current town
manager left while council members
discussed her salary.
Former Mayor C. Warren Crandall said
he was surprised at the charges, and called
the Sunshine requirements confusing,
according to the Vero Beach Press-Journal.
Current Orchid Mayor Richard C.
Dunlop and former council members Walter
J. Sackville, John Brehmer and Barbara
Greenbaum Deputron are accused of the
The Brechner Report U September 2006
University of Florida
Brechner Center for Freedom of Information
3208 Weimer Hall Gainesville, FL 32611
S UNIVERSITY of
Leak investigations waste time, hinder journalism
Almost three years to the day after he published his
now-infamous "Mission to Niger" column in which he
described Valerie Plame as a CIA "operative," Robert
D. Novak revealed what he had told special prosecutor
Patrick Fitzgerald about the sourcing for his article. By
supplying corroboration of what has long been suspected
- that Fitzgerald knew almost immediately and on his
own who Novak's three sources were Novak has
further confirmed another truth about leak investigations:
They are a huge, dangerous waste of time.
It took three years of numbing legal process, including
bruising battles in the federal courts that have left the
relationships between journalists and their sources more
vulnerable, to get us here. And where exactly are we?
The criminal investigation into who in the government
The disclosed Plame's
identity has essentially
Back Pa ge rendered the mission
Sge to uncover the
By Bruce W Sanford and "Mission to Niger" a
R fl n nr, mission to nowhere.
A reporter was jailed
for almost 90 days, but Novak's principal source, whose identity
he still protects under the terms of their agreement, has not
and will not be indicted under the federal law criminalizing the
purposeful disclosure of truly covert agents, because the stringent
requirements of that statute could not possibly be met.
But there's more futility and fatigue to come. The
futility will be evident in the acquittal next year of Vice President
Cheney's former chief of staff, Lewis "Scooter" Libby, on
charges of perjury and obstruction of justice. The acquittal will
be yet another symbol of the misuse of prosecutorial time that is
the big problem with leak investigations.
Libby is charged with providing false statements to a grand
jury when he testified that his contacts about Plame with Judith
Miller of The New York Times and Matthew Cooper of Time
consisted only of repeating a rumor about her identity that he
had heard from NBC's Tim Russert. Russert, however, testified
that he never spoke with Libby about Plame. Prosecutors allege
that Libby learned who Plame was from Cheney and other
government officials. The suggestion is that Libby
sought to protect his administration colleagues by
throwing investigators off the scent.
To win a perjury case, however, a prosecutor has to
prove that a defendant willfully made false statements.
Libby's attorneys will argue that his misstatement was
an innocent mix-up by a top executive branch official
who dealt daily with waves of reporters and a constant
crush of domestic and international issues. It will
anford be virtually impossible for the government to prove
otherwise beyond a reasonable doubt when such a
plausible defense exists and no conclusive evidence has
emerged showing that his recollections of his contacts
withjournalists were intentionally false.
Ask any federal prosecutor, current or former, whether
leak investigations are worth the effort and she'll say
they are a monumental waste of time and resources.
"The only reason to do them is to do them," one former
prosecutor says. "Maybe they have a deterrent effect on
Brown loose lips."
But the certain cost of this elusive benefit, if any, is
too high, since there are plenty of polygraphs and other
devices for the government to ferret out any compromisers of
its true secrets. Worse, leak inquiries end up harming the very
relationships between government officials and journalists that
must exist in confidence for the public to stay informed. By
giving us headlines now, they all but ensure that we'll receive less
real news later.
Even a conviction of Libby would not justify an investigation
that has led many of Washington's finest journalists to ponder
how to dumb down their files and remove traces of their contacts
with sources as if they worked in the capital not of a great
democracy but of Franz Kafka's or George Orwell's worst
nightmare of a police state.
Bruce W. Sanford and Bruce D. Brown are partners at Baker
Hostetler p ..1.. i,. oi media law. This article originally appeared
in The Washington Post and is reprinted with permission of the