Volume 30, Number 11 i 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
Hospital indicted on Sunshine, records charges
OCALA- A grand jury indicted a count of the indictment alleges Munroe carries up to a $500 fine.
hospital, saying officials violated the failed to provide public records a list of "In this case evasive devices were
Public Records and Open Meetings laws. CEO candidates to the Ocala Star- repeatedly used in an attempt to frusti
Munroe Regional Health Systems Inc., Banner. The criminal violation carries up the purposes of both the Public Recor
a publicly owned hospital that is to a $1,000 fine. and Sunshine Laws," the grand jury v
leased to a private operator by A C C E SS The second count alleges Individual board members were no
Marion County, is accused of Munroe's CEO selection charged. "[The board members] serve
two misdemeanors. MEETINGS committee held at least one unpaid volunteers and, we believe, ac
The charges stem from the improperly closed meeting what they felt was the best interest of
hospital's search for a new CEO. The first
WAKULLA COUNTY The Wakulla
Independent Reporter is challenging
the Florida Election Commission's
designation of the publication as an
"electioneering communication" subject
to fines if it publishes again.
The Tallahassee chapter of the ACLU
filed the suit on behalf of publisher and
editor Julia Hanway.
Hanway alleges her publication is
protected by the First Amendment and
should not be subject to Florida election
Three issues of the Independent
Reporter were published between
October 2004 and May 2005. In July
2005, the FEC issued a report finding
Hanway had not willfully violated
election laws, but put her on notice that
the Independent Reporter was considered
an "electioneering communication."
Electioneering communications are
subject to fines for failing to register or
"Newspapers endorse candidates
all the time, so even if the Wakulla
Independent Reporter has a particular
editorial slant that does not constitute
electioneering," said Robert Rivas,
cooperating attorney for the ACLU.
between May 23 and July 13. The charge
hospital," the grand jury said.
Court sanctions attorneys for brief
JACKSONVILLE Two attorneys judgment for the television stations.
representing a woman in a defamation In their appellate brief, Powell and
lawsuit face sanctions for filing a frivolous Dezern said the trial court's ruling
appeal and using inappropriate language in "disparages honest journalism by
their brief and during oral argument. legitimizing an Internet lynch mob and
Judges for elevating porno
the 1st District DEFAMATION queens to the level
Court of Appeal DEFAMATION of supreme court
ordered attorneys judges."
Thomas C. Powell and Roy E. Dezern to Their first "point" on appeal was
pay the opposing side's attorney's fees. "Whether, as a matter of law, different
Their client, Eliza Thomas, sued two dates on the calendar represent different
television stations for libel after they ran days."
stories about her husband, who was on life The lower court will determine the
support. The trial court granted summary amount of the attorney's fees.
FREEDOM OF INFORMATION
CIA retreats on fee practices
WASHINGTON D.C. The Central
Intelligence Agency has abandoned its
plan to charge the National Security
Archive higher fees for records requests.
The Archive filed suit against the CIA
last summer, challenging the agency's
decision to charge additional fees based
on the newsworthiness of individual
In court filings and a letter to the
Archive, the CIA agreed to change
its policies for determining what a
"representative of the news media" is.
Under the Freedom of Information Act,
such entities are only charged copying
A 1989 court decision ruled that the
Archive, a non-governmental research
institute located at George Washington
University, was a representative of the
But in October 2005, the CIA stopped
treating the Archive as a news media
representative and began assessing higher
"This whole dispute shows how easy it
is for agencies to harass the news media
when they want to and how it can delay a
FOIA request," said Meredith Fuchs, the
Archive's general counsel.
Police trash urban magazine at anti-gang rally
FORT PIERCE The publisher of a
local magazine is upset after police threw
copies of her first issue in the trash during
an anti-gang rally.
Fort Pierce police say the 29-page
magazine contained photos of youths
exhibiting gang hand gestures and
wearing gang colors.
Urban Village magazine's editor,
Jauhnisha Oliver, is a substitute teacher
who did not agree with the police
department's reaction. She said the
photos in question featured her students
and were taken at locations away from
Capt. Gregory Kirk wrote in an inter-
office memo that when no one identified
who was distributing the magazine,
he "announced to the crowd that the
literature was inappropriate for an anti-
gang event and that the magazines would
be collected by... officers or thrown in the
Oliver, who is black, has filed a
complaint with the St. Lucie County chapter
of the NAACP.
"The police department is calling
our children gang members and I don't
appreciate that one bit," Oliver said.
"Even if they are, there should be
something available helping them out of that
situation instead of labeling them," Oliver
Attorney general approves
"innovative" records release
PANAMA CITY The city was in
compliance with the Public Records
Law when it posted documents on a
Web page and gave the requester a
password to view them, according
to an advisory opinion by Attorney
General Charlie Crist.
The publisher of The Bay Times
Journal requested all correspondence
concerning Panama City Mayor
Lauren DeGeorge since she began her
term in May 2005.
Mike Harding paid $360 for the 12
hours it took the city to create the site.
DeGeorge requested the ruling from
the attorney general, questioning the
city's response to the records request.
DeGeorge was concerned that the Web
site would not be affordable to average
Harding's request involved
thousands of pages of documents.
Crist called the city's method of
releasing the records "innovative."
Former city official sues city for
public records, loses on appeal
PLANTATION A former councilman complied with, based on testimony of city
who sued the city for allegedly violating witnesses.
the Public Records Law lost his appeal. "Faced with conflicting evidence,
Lee Hillier initiated the suit against the the trial court chose to believe the city's
city of Plantation and Mayor Rae Carole witnesses," the court ruled. "This is
Armstrong in 2002. merely a credibility determination."
The 4th District Court of Appeal Hillier requested records related to
ruled that Hiller's records requests were building issues and government spending.
leads to arrest
of fire chief
ISLES OF CAPRI Fire Chief Emilio
Rodriguez pleaded no contest to a criminal
charge of failing to keep records as a public
Rodriguez was sentenced to 50 hours of
community service for the misdemeanor,
according to the Naples Daily News.
The charge is a result of a $16,850
check that Rodriguez deposited into an
account for the fire department's volunteer
organization, a private entity, instead of the
A sheriff's investigator determined that
the money was used to purchase materials
for the fire department.
The incident came to light as a result of
inquires by Collier County Clerk Dwight
Brock is involved in a legal dispute with
the county over instances where money
due to the county has passed through non-
Brock's office has spent almost $640,000
in legal fees over the past two years.
Newspapers win access to recording of "trial"
TAMPA An audio recording of a
beating during a gang "trial" was released
to the media after The Tampa Tribune and
St. Petersburg Times fought for access to
the tape. The audio from a hidden camera
is part of the case against Michael Victor
Lugo, 28, accused of kidnapping and
beating a fellow gang member. There are
no video images of the beating.
The incident occurred after a May 20
"trial" during which the fellow member
was accused of causing problems within
Lugo's defense attorney objected to the
release of the recording, but Circuit Judge
Daniel Sleet ruled that the release wouldn't
hurt Lugo's chance at a fair trial, according
to The Tampa Tribune.
2 The Brechner Report U November 2006
ACCESS MEETINGS CONTINUED
election on hold
OCALA Residents of McIntosh
must redraw their petition asking for
an election to recall Councilman James
Strange, a circuit judge ruled.
Chief Circuit Judge Victor Musleh
ruled that the petition was too vague,
according to the Ocala Star-Banner. The
petitioners will be allowed to provide
more specific examples.
The recall effort was prompted in
response to allegations that Strange
violated the Sunshine Law.
According to the petition, Strange
requested "all present to swear that
nothing discussed in the meeting would
be divulged outside the meeting room" at
a Feb. 25 meeting.
Strange maintains that his statement
was "an attempt at humor," according to
The petition also alleged the council
called emergency meetings that were not
actual emergencies and discussed issues
outside of public meetings. Strange also
denies those allegations.
Two other council members, Joe
Phillips and Danaya Wright, were also
accused of allegations related to the
emergency meetings, according to the
Star-Banner. They have resigned their
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ety of Newspaper Editors and the Joseph L Brechner
Governor orders probe of
Tampa expressway agency
TAMPA The Tampa-Hillsborough a meeting between the law firm and
County Expressway Authority the authority's lobbyist and a meeting
rescinded a contract for legal services between the firm and the authority's
following an inquiry ordered by Gov. executive director.
Jeb Bush. Gov. Bush's general counsel. Raa
The board had previously
offered the contract to the law firm
That offer was scrutinized after the
authority's legal affairs director, Mary
Hall, alleged Sunshine Law violations
related to the contract.
Hall's allegations stemmed from
Rodriguez, investigated the matter and
ruled that no laws had been broken.
But Gov. Bush still expressed concern
with the handling of the bid. He said
the contract "ought to be thrown out,"
according to The Tampa Tribune.
Gov. Bush also requested a state audit
of the authority's finances.
Non-voting commissioner won't
be penalized for violating law
WAKULLA COUNTY -A county
commissioner violated state law when
he declined to vote during an emergency
meeting, according to State Attorney
Florida law requires commissioners
to vote unless they have a conflict of
But Wakulla County Commissioner
Howard Kessler won't be penalized for
the May 4 violation because no penalty
was established by the legislature,
Meggs wrote in a letter to Gov. Jeb Bush.
Commissioners voted to fire the county
administrator at the emergency meeting.
Kessler attended the emergency meeting
but declined to vote because he felt the
community did not receive adequate notice
of the meeting.
Kessler also said the subject matter was
not appropriate for an emergency meeting,
according to the Tallahassee Democrat.
Meggs concluded that the meeting was
College pulls student newspaper
from racks after president objects
ST. AUGUSTINE Copies of the
student newspaper for a private college
were pulled from the stands after the
president objected to an article's headline
The Gargoyle is the student newspaper
for Flagler College. College President
William Abare gave an interview to
journalism student Kimberly Hosey,
who wrote the article accompanying the
reportedly inaccurate headlines.
Hosey's story was about the school's
finances and an expected tuition
increase. The headline read "Campus
Growth Forces Tuition Hike." College
spokesperson and Gargoyle faculty adviser
Brian Thompson said the college's trustees
have not voted yet on a tuition increase.
The sub-headline said it was the first time
the school had been in debt. Flagler College
had been in debt before, Thompson said.
Abare will allow the Gargoyle to re-print
the issue if the headline and sub-headline
are corrected, Thompson said.
"I understand because this is a private
college, [Abare] has the right to do this,"
Hosey said. "However, it might not have
been a rational choice to make at the time."
The Brechner Report U November 2006
Jury rejects false light claim by Tampa police officer
In September, a panel of six Hillsborough County reach its verdict, finding that Lusczynski had not been
jurors returned a verdict in favor of WFTS-TV and cast in a false light and proceeding no further with the
reporter Mike Mason, finding they did not portray a verdict form as it related to the remaining elements of
Tampa police officer in a false light (Lusczynski v. the tort.
Tampa Bay Television, et al.). Lusczynski will not appeal the jury's verdict. The
Three separate lawsuits were brought against WFTS, remaining two plaintiffs have dismissed their lawsuits
Tampa Bay Television, Inc.'s ABC affiliated station, against WFTS and Mason.
in December 2003 by three Tampa Police Department Basing false light claims upon the publication of
officers. The officers had been featured in news reports Deanna K. truthful information is a relatively recent phenomenon
concerning problems with the promotions process at the Shullman in Florida due in large part to the Second District
agency. Court of Appeal's 2001 holding inHeekin v. CBS
All three plaintiffs were identified in the broadcasts as officers F,.' 1, i, i-. Inc. that a cause of action for false light invasion
who had engaged in misconduct and received discipline but of privacy could exist "when the facts published are completely
were later promoted Each of the officers broniht claims for true."
defamation and false light
The invasion of privacy, claiming
B ack P age the broadcasts were structured
S to falsely imply that they were
By Deanna K. ,M fi//InI corrupt cops, lacking in integrity
and smarts, who had been
promoted based upon favoritism or a good ol' boy system rather
Earlier this year, officer Paul Lusczynski dismissed his
defamation claims. On September 5, 2006 Lusczynski's false
light case was the first of the three to go to trial. Lusczynski had
been featured in the broadcasts as an example of an officer who
had misbehaved, was disciplined, and then later promoted after
an incident during which he head-butted a federal agent in a bar
during a work-related argument.
Though Lusczynski admitted that the details of the incident
were true, he alleged that WFTS and Mason structured the
stories to suggest that statements made by three on-air sources
(a retired deputy chief, a fellow officer and a new chief of
police) specifically referred to Lusczynski and created the false
impression that he was a corrupt cop who was promoted because
of friendship or favoritism.
To prove false light in Florida, a plaintiff must prove that he
was cast in a false light that is highly offensive to a reasonable
person in the plaintiff's position, that the defendants acted with
actual malice, and damages. The jury took about two hours to
Lusczynski's claims were brought in Hillsborough County, a
circuit bound by the Heekin decision. The defendants in Heekin
ultimately prevailed on single action rule grounds (which was
affirmed in 2004 by the Second District without opinion).
Heekin has sparked a rash of false light claims in Florida
courts that are based on publication of truthful information.
False light is an attractive alternative to defamation for plaintiffs
because of its four-year statute of limitations (defamation claims
must be brought within two years) and because of the uncertain
status of constitutional privileges and defenses available in
But in Gannett Co., Inc. v. Anderson, the First District Court
of Appeal recently reversed an $18 million verdict against
Gannett and its co-defendants. The First District held that
Anderson's claim was not materially distinguishable from a
defamation claim and therefore was subject to the two-year
statute of limitations. Anderson's lawyers had argued that the
four-year statute of limitations for unspecified torts applied to the
claim. The court certified the statute of limitations question as in
conflict with Heekin and one of great public importance.
Deanna K. Shullman is an associate at the law firm Thomas
& LoCicero PL. She, along with partners Gregg D. Thomas and
Rachel E. Fugate, represented defendants Tampa Bay Television,
Inc. and Mike Mason in this matter Mark Herdman, ofHerdman
& Sakellarides in Clearwater, represented Lusczynski.