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Title: Brechner report
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Creator: Brechner Center for Freedom of Information, College of Journalism and communications, University of Florida
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Place of Publication: Gainesville, Fla.
Publication Date: July 2007
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THE



BRECHNER


REPORT

Volume 31, Number 7 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
July 2007

False Light suit dismissed, 2-year limit applies


GAINESVILLE Ajudge dismissed
a false-light lawsuit against The
Gainesville Sun and its parent company,
The New York Times Co., citing
expiration of the two-year statute of
limitations for defamation claims and
failure to comply with the pre-suit notice
requirement.
Developer Clark Butler filed the
claim in May 2005 alleging articles
published in The Gainesville Sun were
"worded in such a way" that they
portrayed him as trying to influence
or bribe people involved in a road
expansion project affecting a shopping
plaza owned by Butler.
As a result, Butler claimed he suffered
damage to his business reputation,
financial losses, anguish, embarrassment


WASHINGTON State public records
may be more easily available online thanks
to free consulting and software from
Google Inc., which announced its partner-
ship with four states.
Arizona, California, A C CT
Utah and Virginia are co-
operating with the popular REC OI
search engine, as well as
Microsoft Corp. and Yahoo Inc., to remove
technical barriers that block its search
engines from accessing public records.
Google said at least 70 percent of
visitors to government Web sites get there
by using commercial search engines, but
results are often inefficient and unreliable
because the databases and search engines
are incompatible.
According to Reuters, Google plans to
index the state sites, making the informa-
tion easier to find, as well as making that
same information appear on Google when
users run a normal web search.


and humiliation.
Circuit Judge Toby Monaco said in a
written decision, "[T]he complaint should
be treated as a libel claim, and is subject to
the two-year statute of limitations as well
as the notice requirements...."

DEFAMATION
Monaco based his decision on a 2006
1st District Court of Appeals ruling in
a case involving the Pensacola News-
Journal and businessman Joe Anderson Jr.
Anderson brought a false light claim
against the newspaper over published
facts about his involvement in the death
of his wife during a hunting trip. Law
enforcement officials determined her death
was an accident, but Anderson claimed the


D
E{


Arizona's Chief Information Officer,
Chris Cummiskey, said "Unless you had a
master's degree in government administra-
tion, you probably wouldn't find the actual
information you're looking for."
'SS But increased access alarms
some privacy advocates, such
S as Marc Rotenberg, executive
director of the Electronic Privacy
Information Center (EPIC).
According to The Associated Press,
Rotenberg said the wide circulation of
many public health and financial records
could reveal citizens' Social Security
numbers, and measures should be taken to
ensure these numbers are redacted.
Google's product manager for the new
project, J.L. Needham, told Reuters that
while this will give Google access to the
government sites, "We are only here mak-
ing public information more accessible.
We are not about cracking open internal
records and making them public."


newspaper's report intentionally portrayed
him as a murderous criminal.
The appellate court in Anderson found
that the two-year statute of limitations for
defamation applied, instead of a four-year
period for other torts.
The Sun reported that its attorney,
Larry Turner, said, "We think it's the
correct ruling on the law. We think it's the
appropriate First Amendment protection
for the news media."
According to The Sun, Butler attorney,
Tricia "CK" Hoffler, said, "[T]he Florida
Supreme Court is going to have to make
a final determination on the status of
Florida's false light laws."
The Florida Supreme Court is
scheduled to hear oral arguments on the
Anderson case October 10.

Ex-employee

alleges violations
YANKEETOWN A former
Yankeetown clerk filed suit against
the town, its mayor and two council
members, alleging Sunshine violations.
Mona Sinclair, who was fired in
January, alleges she was dismissed
because she told the media she witnessed
three town officials routinely violate the
Sunshine Law.
Sinclair's suit was filed just weeks
after developers of a proposed riverside
resort in
Yankeetown ACCESS
made similar
allegations. MEETINGS
The
Yankeetown council denied any
Sunshine violations and cited poor
performance as the reason for Sinclair's
termination.
The Florida Department of Law
Enforcement previously investigated
Yankeetown officials for similar charges
but did not prosecute due to lack of
evidence.


Google, states partner to

increase access to state records






ACCESS RECORDS

Attorney disciplinary history will be
TAMPA The Florida Bar Association of the Bar Web site's "Find a Lawyer"
has approved a plan to list attorneys' 10- section.
year disciplinary histories on its Web site. If the member has been disciplined
The records were already available within the past 10 years, the word "yes"
to the public, but were not previously will appear after clicking the "10-year
available online. Discipline History" link.
The disciplinary histories will be The history will include
posted on the member biography pages admonishments, reprimands, suspensions

FIRST AMENDMENT


posted online
and disbarments.
If disciplinary action occurred more than
10 years prior, contact information for the
Florida Bar will appear.
The Bar's Communications Committee
recommended the plan. Several members
of the Bar's Board of Governors opposed
the plan.


Congressman liable for leaked tape


WASHINGTON, D.C. More than a
decade after an infamous conference call
between Republican leaders took place,
a divided federal appeals court ruled that
a congressman could be held liable for
leaking a recording of the conversation to
the media.
The 5-4 decision of the U.S. Circuit
Court of Appeals for the District of
Columbia upheld a previous decision
ordering Rep. Jim McDermott (D-Wash.)
to pay Rep. John Boehner (R-Ohio) over

Supreme Court
WASHINGTON, D.C. A retired
engineer who helped expose fraud at a
nuclear-weapons plant will not receive
any money for his role in revealing
problems with an environmental cleanup,
according to a 6-2 decision by the U.S.
Supreme Court.
James Stone, 81, could have collected
up to $1 million a quarter of what
Rockwell International was ordered to
pay the government for submitting false
claims that stated it was meeting goals
for treating radioactive waste. But the


$700,000 in damages and legal fees for


resulting in published stories about the


leaking the tape. phone call.
Boehner was one of the parties to the The court found that McDermott waived
1996 conference call regarding ethics his First Amendment right to disclose
allegations against then-House Speaker the tape to the media when he became a
Newt Gingrich. member of the ethics committee.
A Florida couple illegally recorded Most of the judges indicated that
the call on a scanner and gave the McDermott's case was an exceptional one
recording to McDermott, a senior given his official role and that the First
member of the House ethics committee. Amendment would normally provide
McDermott leaked the tape to protection for most people, including
newspapers such as The New York Times, journalists, in a similar situation.

limits whistleblower payouts


Court ruled that Stone was not entitled
to the award under the False Claims
Act because he did not have "direct
and independent knowledge of the
information upon which his allegations
were based."
The Bush administration and some
congressional members sided with Stone,
arguing that it would help the government
if whistleblowers were encouraged to
come forward.
"The Supreme Court has made it even
more difficult to get to the bottom of


waste, fraud and abuse of taxpayer money,
said Sen. Charles Grassley (R-Iowa).
In 1989, Stone filed a lawsuit against
Rockwell International, now a part of
Boeing Co., over an environmental cleanup
at the former Rocky Flats plant in Colorado.
Although Stone did not file suit until
after problems at the plant became public,
he did approach federal investigators
beforehand. Rockwell said Stone's claim is
impossible because he was laid off before
Rockwell began submitting false claims to
the government.


Anti-war bumper sticker gets 3 ousted from speech


WASHINGTON, D.C. Lawyers for
two men accused of illegally ejecting
two people from a speech by President
Bush in 2005 argue that their clients had
the right to take action against members
of the audience who held views different
from the president.
Michael Casper and Jay Bob
Klinkerman were working as bouncers
during a public presidential forum in
Colorado when they expelled three
audience members, Alex Young, Leslie
Weise, and Karen Bauer.
Young and Weise filed suit against
the bouncers alleging they were ejected


because they arrived in a car displaying
an anti-war bumper sticker that read,
"No More Blood For Oil." They also
wore t-shirts under their jackets that
said, "No more lies" but never revealed
them.
Attorneys for Casper and Klinkerman
moved for the case to be dismissed,
arguing that the bouncers operated under
orders from federal officials and were
therefore immune from lawsuits over the
incident. The motion was denied.
In depositions, the bouncers said
the expulsion order came from former
White House official Steve Atkiss. who


is now a U.S. Department of Homeland
Security chief of staff, and current White
House staffer, Jamie O'Keefe.
According to The Denver Post, Atkiss
said, "If it became obvious and apparent
somebody is there to create a fuss, there was
an effort made to ensure that didn't happen."
Atkiss said it was White House policy to
exclude potentially disruptive guests from
Bush appearances nationwide.
"[T]he president has a right to express
his opinion without being shouted down,"
Atkiss said.
There is no evidence that the plaintiffs
were ever actually disruptive.


2 The Brechner Report July 2007







2007 LEGISLATIVE REVIEW


TALLAHASSEE The following is a
summary of bills pertaining to public
records and open meetings introduced
during the 2007 legislative session. Chief
sponsors of the bills are in parentheses
at the end of the summaries. Copies of
the legislation in full are available at the
Florida Legislature's Web site (www.leg.
state.fl.us). SB = Senate Bill; HB = House
Bill; CS = Committee Substitute.

The following 11 bills create new
exemptions to the state Public Records and
Open I fi...'', laws. The status of each
bill as ofJune 13 is noted.
HB 63 Exemption/Domestic Violence
- State Employees: Creates a public
records exemption for personal identifying
information contained in records
documenting an act of domestic violence
that is submitted to an agency by an agency
employee. Also exempts written requests
for leave submitted by an agency employee
and agency time sheets reflecting such
requests until one year after the leave has
been taken. (Porth, D-Coral Springs)
Approved by Gov. Crist June 12.

CS/HB 131 Exemption/Florida
Opportunity Fund: Creates a public
records exemption for 1) materials relating
to methods of manufacture or production,
potential trade secrets, or patentable
material received, generated, ascertained,
or discovered during the course of
research conducted by universities or
other publicly supported organizations
in Florida; 2) information identifying
investors or potential investors to the fund
who desire anonymity; 3) information
received from another state or nation
that would otherwise be confidential or
exempt; and 4) proprietary confidential
business information regarding alternative
investments for 10 years after termination
of the investment. Exempts portions of
meetings of the fund board and the Institute
for the Commercialization of Public
Research at which exempt information is
discussed. Requires that such meetings
be recorded but creates an exemption
for portions containing confidential
information. Allows access under certain
specified conditions and stipulates that
any lawsuit to compel access must be
brought in Orange County. (Grant, R-Port
Charlotte) Presented to Gov. Crist June 11.


CS/HB 463 Exemption/High School
Drug Tests: Creates a public records
exemption for records relating to random
drug tests of high school athletes. Allows
disclosure to certain persons, including
a student's parents and administrators.
Exempts portions of a meeting at which
confidential and exempt records are
discussed or presented. (Llorente, R-
Miami) Presented to Gov. Crist June 5.

HB 853 Exemption/Historic St.
Augustine Donors: Creates a public
records exemption for the identity of a
donor or prospective donor to the historic
preservation of St. Augustine if the donor
or prospective donor wishes to remain
anonymous. (Proctor, R-St. Augustine)
Approved by Gov. Crist May 24.

CS/SB 1034 Exemption/Physician
Workforce Surveys: Creates a public
records exemption for all personal
identifying information contained
in workforce surveys completed by
physicians as a condition of license
renewal by the Department of Health.
Allows disclosure under certain specified
circumstances. (Atwater, R-North Palm
Beach) Approved by Gov. Crist June 12.

CS/HB 1405 Exemption/Historic
Landmarks Donors: Creates a public
records exemption for identifying
information about a donor or prospective
donor to publicly owned house museums
designated National Historic Landmarks if
such persons desire anonymity. (Bullard,
D-Miami) Ordered enrolled May 3.

SB 1510 Exemption/Sunshine State One-
Call: Creates a public records exemption
for proprietary confidential business
information held by Sunshine State
One-Call which describes damage to an
underground facility or use of the member
ticket management software system.
Prohibits disclosure if the information 1)
is treated by the company as confidential;
2) would be used by a competitor to
harm the company's interests; and 3) is
not otherwise readily ascertainable or
publicly available by proper means from
another source in the same configuration
as provided to Sunshine State One-Call of
Florida, Inc. (Aronberg, D-Greenacres)
Approved by Gov. Crist June 12.


HB 7159 Exemption/Lifeline Assistance
Plan: Creates a public record exemption
for personal identifying information of
participants in the Lifeline Assistance Plan
held by the Public Service Commission.
Provides for disclosure when authorized
by the customer, necessary for billing
purposes, or required by the court.
(Reagan, R-Bradenton) Ordered enrolled
May 2.

HB 7169 Exemption/Worker's
Compensation: Creates public record
exemptions for records held by the
Florida Workers' Compensation Joint
Underwriting Association, Inc. that are
1) underwriting files; 2) claims files until
termination of all litigation and settlement
of all claims arising out of the same
accident; 3) records obtained or generated
by an auditor pursuant to a routine audit
or investigation until such is complete;
4) proprietary information licensed
to the association under contract; 5)
medical records; 6) records relating to an
employee's participation in an employee
assistance program; 7) information
relating to negotiations for financing,
reinsurance, etc., until conclusion of the
negotiations; 8) reports provided to or
submitted by the association regarding
suspected fraud or other criminal activity
until any investigation into such activity
is closed; (9) payroll information and
client lists of employee leasing companies
received from the Department of Revenue;
and 10) records prepared by an association
attorney reflecting a mental impression,
conclusion, litigation strategy, or legal
theory of such. Allows disclosure under
certain specified circumstances. Requires
that all portions of meetings discussing
confidential information be recorded and
that the recordings be transcribed, but
creates an exemption for such information
from disclosure. (Reagan, R-Bradenton)
Presented to Gov. Crist June 11.

HB 7193 Exemption/U.S. Census
Information: Creates a public record
exemption for U.S. Census bureau
information, including maps showing
structure location points, address
verification records, and address error
or omission records held by an agency
pursuant to federal law. Allows for
disclosure under certain specified
The Brechner Report U July 2007







LEGISLATION CONTINUED


circumstances. (Attkisson, R- St. Cloud)
Ordered enrolled May 2.

HB 7201 Exemption/Economic
Development Agencies: Creates an
exemption for 1) proprietary confidential
business information held by an
economic development agency until such
information is no longer treated as such by
the proprietor; 2) trade secrets and federal
identification numbers; 3) unemployment
compensation account numbers, or Florida
sales tax registration numbers held by an
economic development agency (EDA).
In addition, creates an exemption for
certain specified information held by
an EDA pursuant to the administration
of an economic incentive program for
qualified business, stipulating that the
exemption applies only for the duration
of the incentive agreement and expires
if the incentive agreement is terminated.
(Attkisson, R- St. Cloud) Presented to
Gov. Crist June 11.

The following five bills concerning Public
Records and Open i L .. r ,,., laws were
enacted or amended during the 2007
LI. s, ii,, .. session.
CS/SB 116 Use of Name/Armed Forces
(Robert A. Wise Military Protection
Act): Amends s. 540.08, F.S. The
unauthorized publication of the name
or likeness of a member of the Armed
Forces without consent of such is subject
to a civil penalty of $1,000 per violation.
(Atwater, R-North Palm Beach) Presented
to Gov. Crist June 11.

CS/HB 455 Organ & Tissue Donation
Program: Amended to stipulate that
the records and meetings of the Florida
Coalition on Donation, a private non-
profit organization providing education
and helping to coordinate the statewide
organ and tissue donation program in
cooperation with the Department of
Highway Safety and Motor Vehicles, are
open to the public in accordance with
s. 119.07(1), F.S., s. 286.011, F.S., and
Art. I, s.24, Fla. Con., unless otherwise
made exempt by law. (Cretul, R-Ocala)
Presented to Gov. Crist May 29.

CS/SB 830 Driver History Records:
Amends s. 119.0712(2), F.S., the Driver's
Privacy Protection Act, providing further
4 The Brechner Report July 2007


restrictions on disclosure of a person's
identification card number, social security
number, photograph, medical disability
information, and emergency contact
information. (Baker, R-Eustis) Approved
by Gov. Crist June 12.

SB 1760 Public Records/Inspection &
Copying: Stipulates that a custodian or a
person having custody of public records
may designate another officer or employee
of the agency to permit inspection and
copying of such records, but must disclose
the identity of such designee to the
person making the request. Requires the
custodian or the custodian's designee to
acknowledge requests to inspect or copy
records promptly and respond to such
requests in good faith. (Justice, D-St.
Petersburg) Approved by Gov. Crist
May 22.

HB 7107 Prohibition/Publication of
Names in Child Support Enforcement:
In pertinent part, amends s. 742.09, F.S.,
which makes it unlawful to publish the
name of any of the parties involved in a
court proceeding to determine paternity,
in order to serve process on said parties.
(Galvano, R-Bradenton) Approved by
Gov. Crist May 24.

The following eight exemptions were
reenacted during the 2007 session under
the Open Government Sunset Review
Act. Amendments are noted. Other bills
introduced during the session that were
similar or identical to these bills, but were
not passed, are available in the "Related
Bills" section of the respective !,. Ig, 'ir,. '1
CS/SB 816 OGSR/Law Enforcement
Transmittal Letters: Reenacts with
some modification the public records
exemption in s. 119.071(2)(c)2., F.S.,
for requests made by a law enforcement
agency to inspect or copy a public
record in the custody of another agency.
As amended, stipulates that a request
made by a law enforcement agency to
inspect or copy a public record that is
in the custody of another agency and
the custodian's response to the request,
and any information that would identify
whether a law enforcement agency has
requested or received that public record,
are exempt during the period in which the
information requested constitutes active


criminal intelligence information or active
investigative information. Stipulates that
the law enforcement agency that made the
request to inspect or copy a public record
shall give notice to the custodial agency
when such information is inactive so that
all such information would be become
available to the public. (S. Criminal
Justice Committee) Approved by Gov.
Crist June 12.

SB 886 OGSR/Building Plans: Reenacts
with minor technical modification the
public exemption in s. 119.071(3)(b), F.S.,
for building plans, blueprints, schematics
drawings, and diagrams which depict the
internal layout and structural elements of a
building, arena, stadium, water treatment
facility, or other structure owned or
operated by an agency. (Committee on
Military Affairs and Domestic Security)
Approved by Gov. Crist June 12.

SB 1950 OGSR/Abandoned Newborns:
Reenacts with minor technical
modification the exemption in s. 383.51,
F. S., for the identity of parents leaving
newborn infants at hospitals, fire stations,
or emergency medical services stations.
The identity of a parent leaving a child
shall be disclosed to a person claiming
to be a parent of the newborn infant. (S.
Children, Families and Elder Affairs
Committee) Approved by Gov. Crist
June 12.

HB 7127 OGSR/Identifying
Information Optional Retirement
Program: Reenacts with minor technical
modification s. 121.4501, F.S., providing
an exemption for personal identifying
information contained in Florida
Retirement System records of participants
in the Public Employee Optional
Retirement Program. (H. Government
Efficiency & Accountability Council and
Attkisson) Presented to Gov. Crist
June 11.

HB 7197 OGSR/Social Security
Numbers & Personal Financial
Information: Reenacts with minor
modification s. 119.071(5), F.S., providing
an exemption for social security numbers
and personal financial information held
by an agency. Postpones the initiation of
automatic redaction of such information







LEGISLATION CONTINUED


in official records or court records to
2011. (H. Government Efficiency &
Accountability Council and Attkisson)
Ordered enrolled May 2.

CS/SB 1848 OGSR/Abandoned
Property Records: Reenacts and
amends s. 717.117, F.S., providing an
exemption for social security numbers
and property identifiers in reports to
the Department of Financial Services
of abandoned or unclaimed property.
Stipulates that social security numbers
and property identifiers contained in
reports to the Department of Financial
Services of abandoned or unclaimed
property are confidential and exempt,
but may be released to an attorney or
Florida-certified public accountant
or private investigator. Subjects the
exemption to the OGSR Act. (S.
Banking and Insurance Committee)
Approved by Gov. Crist May 24.

SB 1852 OGSR/DOI Personal
Financial and Identifying
Information: Amends and slightly
expands the exemption provided by s.
624.23, F.S., for personal financial and
health information of a consumer held
by the Department of Insurance or its
service providers. Exempts personal
financial and health information held by
DOI and the Department of Financial
Services that relate to a consumer's
complaint or inquiry regarding matters
regulated under the Florida Insurance
Code. Defines "personal financial

THE
BRECHNER
REPORT
Brechner Center for Freedom of Information
3208 Weimer Hall, P O Box 118400
College of Journalism and Communications
University of Florida, Gainesville, FL 32611-8400
http //www brechner org
e-mail brechnerreport@jou ufl edu
Sandra F Chance, J.D., Exec. Director/Exec. Editor
Ana-Klara Hering, Editor
Alana Kolifrath, Production Coordinator
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 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 Society
of Newspaper Editors and the Joseph L Brechner
Endowment


and health information." Subjects
the exemption to the OGSR Act. (S.
Banking and Insurance Committee)
Approved by Gov. Crist May 24.

HB 7187 OGSR/DOI- Workpapers:
Reenacts and amends s. 624.319, F.S.,
providing an exemption for examination
reports, investigative records, and
workpapers held by or provided to
the Department of Insurance. Defines
"workpapers" to mean records of the
procedures followed, tests performed,
information obtained, and conclusions
reached in certain examinations or
investigations. Exempts examination
reports until filed, investigation
reports, and workpapers and other
information held by or provided to DOI
in performance of its examination or
investigation duties until the examination
report is filed or the investigation is
complete or inactive. Provides that after
an examination report is filed, completed
or ceases to be active, portions of
workpapers may remain confidential and
exempt under certain circumstances. (H.
Government Efficiency & Accountability
Council and Attkisson) Ordered enrolled
May 2.

The following bill repealed an .. \ ,,in
exemption.
SB 1452 OGSR/Public Service Tax:
Repeals s. 166.236, F.S., which provided
an exemption for information received
by a taxing authority in connection with
an audit of public service taxes collected.
(S. Communications and Public Utilities
Committee) Approved by Gov. Crist
May 22.

The following bills were introduced dur-
ing the 2007 session but were not passed.
HB 7125 OGSR/Financial Account
Numbers Held by an Agency
HB 7217 Exemption/DHSMV, Auto
Insurance Policy Information
HB 717 Sealing Criminal History
Records
SB 950 Exemption/Medical Records
SB 1240, SB 1244, SB 1264, SB 1266,
SB 634, SB 1576, SB 1590, SB 2724,
and SB 2726 Exemption/Shell Bill
SB 1348 OGSR/Social Security Num-
bers, Court Records
SB 2024 Exemption/Florida Alterna-


tive Energy Center
SB 2156 Ex-Offenders, Employment
Reports
SB 2158 Criminal Records, Minors
SB 2308 Juvenile Blood Tests
SB 766 Exemption/Shell Bill, Electronic
Health Records
SB 2510 Exemption/Ethics Commission
Investigators
SB 2706 Exemption/Seaport Authority,
Criminal Investigations
SB 2416 Exemption/Technology, Research,
and Scholarship
CS/SB 1346 Chapter 119/Court Records
CS/SB 1076 Exemption/State University
Research Corporation
HB 43, SB 342, SB 2242, and SB 2164
- Voting Systems
HB 377 and SB 462 Voting Systems
HB 231 and SB 726 DBPR/Building
Inspectors
HB 375 and SB 1340 Exemption/Home
Addresses, EMTs
HB 457 and SB 884 Patient's Right to
Know Act
HB 467 and CS/SB 2624 Exemption/
Public Hospital CEOs
HB 825 and SB 1618 Exemption/Public
Meetings, Pending Litigation
HB 1061 and SB 1650 Freedom of Speech
& Press
HB 1211 and SB 2268 Distribution of
Personal Identification Information
HB 1213 and SB 2818 Exemption/Personal
Identification Information
HB 1323 and SB 2190 Juvenile Records
HB 1337 and CS/SB 2390 Exemption/
Boca Raton Community Hospital
HB 1425 and SB 2546 Child Abuse
Reporting
HB 1523 Exemption/SURE Venture, Inc.
HB 1527 and SB 2422 Exemption/SURE
Venture Capital Fund
CS/HB 153 and CS/SB 560 Ad Valorem
Tax Data
CS/HB 213 and CS/SB 1174 Trust in
Elections Act
CS/HB 1117 and SB 2184 Fraud/Personal
Identification Information
CS/HB 1123, SB 2252 and SB 2350 Ex-
emption/Florida Health Information Network
HB 749 and SB 734 Campaign Financing/
Local Governments
HB 895 and SB 520 Exemption/Controlled
Substances Database
HB 961 and SB 608- Exemption/Land
Acquisition


The Brechner Report U July 2007





























2007 'Good Year' for legislative exemptions
To the unpracticed eye, the 2007 legislative session was repealed. This, too, is a rare occurrence most
was not all that different from previous sessions. (There sunset review bills are approved by wide margins and
were 11 new exemptions created in 2007, compared to 10 rarely is an exemption repealed or allowed to sunset.
created in 2006.) One of the exemptions subject to sunset review
But it was different dramatically different from protects access to Social Security numbers. Under
past years. The most significant difference, perhaps, current law, Social Security numbers are generally
was the fact that the truly awful legislative proposals, exempt from public disclosure. There is an exception
such as a bill that would exempt all personal identifying to the exemption, however, for a commercial entity
information in all public records, were not considered engaged in a "legitimate commercial activity." Under
and died in committee. The exemption bills that were Barbara A. Petersen the exception, commercial entities, which include the
considered in various committees were generally non- media, are allowed access to Social Security numbers
controversial and constitutionally justifiable or were for the sole purpose of identity verification. There were
amended during the process to narrow the scope of the exemption. numerous workshops and meetings prior to reenactment of this
Most of the bills considered, however, did not pass. exemption, and early drafts of the bill significantly narrowed the
In years passed, there has generally been a great deal of commercial entity exception. In the end, though, the exemption
The controversy surrounding was reenacted with minor change, and the news media is allowed
B ck Pe many of the open government access to the entire Social Security number under certain, specified
B ack P ag exemptions, with sometimes conditions.
fierce floor debate. House Finally, the Legislature passed a bill that enhances our right of
By Barbara A. Petersen Democrats under the access to public records. Senate Bill 1760 requires an agency to
leadership of former Rep. Doug Wiles and his predecessor Rep. "promptly" acknowledge a request to inspect or copy records and
Dan Gelber have routinely challenged onerous or overbroad respond to such requests in "good faith." The bill also requires a
exemption bills. But in the 2007 session, committee deliberation records custodian to disclose the identity of any person designated
was limited, and there was relatively little floor debate. to permit inspection and copying of public records. The
Also, many of the exemptions created were somewhat legislation, sponsored by Sen. Charlie Justice and Rep. Shelley
duplicative. Two new exemptions relate to the identity of donors. Vana, was filed in direct response to problems encountered in
At least three newly-enacted exemptions protect trade secrets attempting to access to records of various state agencies under the
and other confidential proprietary business information received previous administration. Similar legislation passed both chambers
by a government agency. To avoid creation of numerous similar unanimously in 2006 but was vetoed by Governor Bush.
exemptions, we should consider creation of universal exemptions So all in all, it was a good year. Not a stellar year, but in
that apply to all public records held by any agency. Right now, comparison to the past eight years, good is great. This is due in
there aren't many universal exemptions in Florida law, and we large measure to the tone set by our new governor. Also, Senate
would want to ensure that such exemptions are limited only to President Ken Pruitt paid close attention to open government
information that is truly sensitive and worthy of protection. legislation, giving each bill the careful scrutiny such measures
In addition to the newly-created exemptions, there were nine deserve. Every exemption bill passed by the legislature is, after
OGSR exemption bills approved by the Legislature. Under all, an exception to our constitutional right of access to the records
the Open Government Sunset Review Act of 1995, all open and meetings of Florida government.
government exemptions must be reviewed and reenacted five Barbara A. Petersen is president o.-l, First Amendment
years after enactment or the exemption automatically "sunsets" Foundation in Tallahassee, Fla. A list of all open government bills
(expires). Most of the 2007 OGSR exemptions were reenacted considered during the 2007 legislative session, as well as a brief
without modification, a few were actually narrowed, and one, an synopsis of each bill that passed, is available on the FirstAmendment
exemption for information relating to public service tax audits, Foundation s Web site, ww.floridafaf org.




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