Title: Brechner report
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00090012/00092
 Material Information
Title: Brechner report
Series Title: Brechner report
Physical Description: Serial
Language: English
Creator: Brechner Center for Freedom of Information, College of Journalism and communications, University of Florida
Publisher: Brechner Center for Freedom of Information
Place of Publication: Gainesville, Fla.
Publication Date: August 2007
 Record Information
Bibliographic ID: UF00090012
Volume ID: VID00092
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.


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Volume 31, 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

August 2007

FEMA records made public after
FORT MYERS The Federal addresses after their public information
Emergency Management Agency was requests were denied.

ordered to make public the
addresses of more than
600,000 households that A (
received $1.2 billion in aid I (
following the 2004 hurricane

The News-Press, Pensacola News
Journal and Florida Today newspapers, all
owned by Gannett Co. Inc., and the South
Florida Sun-Sentinel, owned by Tribune
Co., sued FEMA for the names and

Florida FOI Summit
Registration Begins
editors, access advocates, public
officials, media lawyers, citizens
and students interested in freedom
of information in Florida, nationally,
and globally will be gathering in
Gainesville, Fla., for the 2007 Florida
FOI Summit, Sept. 20-21. Participants
will explore Florida's open government
laws, ask the experts questions, discuss
challenges to access and recommend
strategies for protecting and increasing
the public's right to know and freedom
of information.
During the Summit, new members
will be inducted into the Florida FOI
Hall of Fame, the top 30 FOI stories
in the state of Florida over the past 30
years will be unveiled and the Brechner
Center's 30th anniversary will be
The cost of the conference is being
underwritten by a grant from Mrs.
Marion Brechner. More information
about the Summit is available at


"We wanted to know if
FEMA was fair and equitable
in the way they distributed
aid in the state by storm. The
only way to do that and the

judges concurred is for FEMA to be held
to a standard that they are accountable and
fair," said Betty Wells, Special Projects
editor at The News-Press during the three-
year battle.
"We requested the information so we
could perform our watchdog duties, and
with this reversal we will be able to do
just that," said Kevin Doyle, News Journal
president and publisher.
The three-judge panel of the U.S.
11th Circuit Court of Appeals ruled that
the newspapers have a right to access

three-year battle
the addresses of disaster aid recipients.
However, the court did not provide access
to the names of those recipients.
The judges ruled that "disclosure of the
addresses will help...by shedding light on
whether FEMA has been a good steward
of billions of taxpayer dollars in the wake
of several natural disasters across the
country, and we cannot find any privacy
interests here that even begin to outweigh
this public interest."
"After the review is complete, we will
determine the best manner in which to
proceed, said FEMA Press Secretary
Aaron Walker.
"I think the judges' decision is so
compelling, leaving so little room for
criticism, I'd be hard-pressed to believe
that they will continue to fight this,"
Gannett attorney Charles Tobin said.

Attorney General launches

Government Accountability Program
TALLAHASSEE Attorney General The first phase of the project will
Bill McCollom launched the Government determine what discrepancies exist
Accountability Project (GAP) to between records already available and
encourage state and local government the information citizens need but have
entities to provide Florida's citizens more difficulty obtaining. The second phase
information and records necessary to hold will involve collaboration with state and
their government accountable. local government entities to eliminate
The project was A C C E SS discrepancies.
launched in partnership Av U "The Brechner Center is
with The Brechner RECORDS excited to be partnering with
Center for Freedom of Attorney General McCollum
Information, whose mission is to further on this project," said Sandra Chance,
advance the understanding, appreciation executive director of the Center.
and support for freedom of information "Improved electronic access will make it
and education, much easier for us to hold our government
"Florida is a national leader in officials accountable for their decisions
providing open government for the that affect our lives, our families and our
public," said Attorney General McCollom. communities."
"It is my hope that this project will serve Information about the Government
as an example for other government Accountability Project is available at
entities to follow." http://myfloridalegal.com/sunshine.






Summary: Attorney General Opinions on open government

TALLAHASSEE Attorney General
Bill McCollum issued several opinions
regarding open government issues
during his first months in office. The
following are summaries. To read
the full text of the opinions, visit
Law enforcement officer photos:
Who is considered "law enforcement
personnel "for the purposes of the
public records exemption in section
119.071 (4)(d)l, Florida Statutes? What
limits the chief ofpolice when releasing
photos ofpolice department officers and
AGO 2007-21: This exemption seeks
to protect law enforcement personnel
and their families. Although "law
enforcement personnel" is not clearly
defined, it includes law enforcement
officers who, for the purposes of the
public records exemption, appear to
include sworn personnel but not support
staff. Photographs of law enforcement
officers are exempt, but not confidential.
The chief of police should consider
whether there is a statutory or policy need
for releasing the photos.
Juvenile misdemeanor records: Is
the sheriff's office required to release the
name and addresses ofparents ofjuvenile
misdemeanor offenders when asked for
such information in a public records
AGO 2007-19: Assuming section
985.04(2) (governing juvenile records
where the juvenile has committed what
would be equivalent to, if he was an
adult, three or more misdemeanors or a
felony) does not apply, the sheriff's office
is not authorized to release the names
and addresses of the parents of a juvenile

misdemeanor pursuant to a public records
Business expansion/relocation
plans: Does section 288.075, Florida
Statutes, requiring an economic
development agency to keep business
plans confidential upon written request
from the business, preclude the agency
from disclosing the existence of the
written request and other confidential
AGO 2007-15: A written request
for confidentiality under 288.075(2)
may contain information required to
be confidential. The records custodian
must determine on a case-by-case basis
whether the request or part of the request
falls under the statutory exemption. The
custodian may cite 288.075(2) as the
reason for withholding the document
(implicating its existence) without
violating the confidentiality required by
the statute.
E-mails and e-mail addresses: Are
e-mails sent by city commissioners that
contain undisclosed or blind recipients
and their e-mail addresses public
records? Ifso, how should these records
be maintained?
AGO 2007-14: An e-mail sent by the
commissioner in connection with official
business is a public record, regardless of
whether the e-mail contained undisclosed
or blind recipients. Records custodians
should comply with Florida statutes
and internal procedures regarding the
maintenance of electronic records.
Regional planning council: Is it a
violation of the Sunshine Law for two
county commissioners who are also
board members of a regional planning
council to attend and participate in

Veteran loses honorable status after protest
KANSAS CITY, Missouri A U.S. personnel are not allowed to wear their
military panel recommended a Marine uniforms without authorization.
reservist receive a general discharge after The three-judge military panel's final
he was pictured at an anti-war protest recommendation was to involuntarily
dressed in desert fatigues. FIRST dismiss Kokesh with a
Marine Corporal Adam general discharge just weeks
Kokesh, 25, insisted he AMENDMENT before the official end of his
did not violate military contract.
policy because he removed his name tag The decision strips Kokesh of the
and badges, but the military considered honorable discharge he received after a
the protest a political event, at which combat tour in Iraq.

planning council ,,11. r ,,, when those
planning council issues may later arise at
county commission ;,,..". r,,,;
AGO 2007-13: Two county
commissioners who are also planning
council members may take part in council
meetings and express their opinions without
violating the Sunshine Law. However, they
should not discuss these issues outside the
Sunshine as either commissioners or council

Jacksonville records

come up short
JACKSONVILLE -A Florida Times-
Union report revealed a flawed system of
public notification, dozens of meetings about
public business held without public notice or
written minutes and several that took place
in private locations, a violation of the city's
ethics code.
Records from June 2005 to December
2005 revealed that meeting notices involving
two or more council members are given
to other city officials and to the media but
rarely the public.
ACCESS scheduled meetings
MEETINGS between two or more
council members
dealt with specific items of city business,
according to calendar entries. Yet no public
notice was filed.
Several discussions of public business
involving two or more council members
were held in private places.
Ten of 19 council members failed to keep
written minutes for any of their meetings.
According to the Times-Union, State
Attorney Harry Shorstein told the council at
a meeting in June that he would push for an
inquiry because of the council's "culture of
blatant disregard" for open meetings laws.
After hearing three hours of evidence,
the Duval County grand jury decided
to investigate whether members of the
Jacksonville City Council violated Florida's
Sunshine Law. Violations could result in up
to 60 days in jail or fines of up to $500.
"There were allegations of continual
violations of government Sunshine Law,"
State Attorney Harry Shorstein said in
announcing the grand jury's decision,
according to WJXT-TV

2 The Brechner Report August 2007


'Bong Hits 4 Jesus' case limits

Court ruled that a high school principal
did not violate a student's constitutional
rights when she told him to take down
a 14-foot banner that read "Bong Hits 4
Jesus" and subsequently suspended him
for 10 days when he refused.
The Court ruled 5-4 that Deborah
Morse did not violate Joseph Frederick's
First Amendment rights because school
officials may "take steps to safeguard
those entrusted to their care from speech
that can reasonably be regarded as
encouraging illegal drug use."
In a written opinion, Chief Justice
John Roberts said, "It was reasonable
for [the principal] to conclude that the
banner promoted illegal drug use... and
that failing to act would send a powerful

message to the students in her charge,
including Frederick, about how serious
the school was about the dangers of illegal
drug use."
The decision gives schools wider
discretion to limit messages that appear to
advocate illegal drug use.
Frederick unveiled the banner as the
2002 Olympic torch relay passed by his
high school.
Morse argued this was a school speech
case because the event occurred during
school hours and was sanctioned as an
"approved social event at which the
district's student-conduct rules expressly
Students were allowed to leave the
school premises to view the parade.
She said that she was "empowered to

student rights
enforce the school board's written policies
at the time aimed at keeping illegal
substances out of the school environment."
The Court said in its opinion, "The
First Amendment does not require schools
to tolerate at school events student
expression that contributes to those
In his dissent, Justice John Paul Stevens
wrote, "The notion that the message on
this banner would actually persuade either
the average student or even the dumbest
one to change his or her behavior is most
Frederick, now 24 and teaching English
in China, told CNN, "I find it absurdly
funny...I was not promoting drugs... I
assumed most people would take it as a

SPJ requests investigation into arrest of journalist

MIAMI The South Florida Chapter of
the Society of Professional Journalists has
asked the Miami-Dade Police Department
to open an inquiry into the February arrest
of television journalist Michael Kirsch,
who was investigating allegations against
the department and its director.
Kirsch, who was employed at the time
as an investigative reporter at WFOR
CBS 4, said he was assaulted and treated
harshly with no provocation during a
traffic stop near his home when he was


Brechner Center for Freedom of Information
3208 Weimer Hall, PO Box 118400
College of Journalism and Communications
University of Florida, Gainesville, FL 32611-8400
http //www brechner org
e-mail brechnerreport@jouufl edu
Sandra F. Chance, J.D., Exec. Director/Exec. Editor
Ana-Klara Hering, Editor
Alana Kolifrath, Production Coordinator

The Brechner Report is published 12 times a
year under the auspices of the University of Florida
Foundation The BrechnerReport 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

off-duty with his family. individual. Nor should police behavior
SPJ sent a letter to Director Robert in any case degrade or punish a member
Parker requesting a department inquiry of the public. Any punishment should
into how follow charges and
the officer NEWSGATHERING judicial action. Mr. Kirsch
responded believes he was subjected
when Kirsch stepped out of his automobile to unnecessarily harsh treatment."
at the roadside. Kirsch was originally charged with
The letter said, "Nobody should multiple felony offenses, including assault
be subjected to detention that is not on a police officer. The state attorney
made necessary and appropriate by reduced the charges to a misdemeanor
the circumstances of the actions of the charge of resisting arrest without violence.

Governor Crist appoints

Commission on Open Government

TALLAHASSEE Gov. Charlie Crist
appointed the nine-member Commission
on Open Government to review and
evaluate the public's right of access to
government meetings and records.
The commission will
hold at least three public A C C
hearings throughout the
state to receive input from RECO
the public, media and
government representatives.
The commission's findings and
recommendations will be presented to the
governor, Senate president and speaker of
the House of Representatives by the end
of 2008.


"Florida's Sunshine Laws are among
the strongest in the nation and give every
citizen access to information necessary for
participating in the democratic process,"
said Gov. Crist. "The Commission on
Open Government will help
JS SS ensure that all levels of
government are accessible to
DS the people."
The committee is
comprised of media representatives,
attorneys and government officials from
throughout the state. Information about
the Commission on Open Government is
available online at

The Brechner Report August 2007 3

Court clears FEMA's cloud of secrecy

Long before Floridians could clean-up the
devastation left in the wake of Florida's historic
2004 hurricane season, reporting by the South
Florida Sun-Sentinel revealed serious flaws in
FEMA's aid disbursement process.
Questions emerged about whether the
Federal Emergency Management Agency had
allowed millions of dollars of federal taxpayer
money to be released to people in areas that
were not impacted by the storms.
A government investigation ensued, which
revealed FEMA failed to provide needed
oversight and neglected to implement quality
controls that could protect the integrity of the

Deanna K. Shullman Rachel E. Fugate

Back Page
By Rachel E. Fugate and
Deanna K. Vnillin, In

The Sun-Sentinel made a Freedom of Information Act request
for FEMA's aid disbursement records, including the database that
tracks aid requests and disbursements.
FEMA insisted that the addresses of disaster claimants
were exempt from public disclosure under FOIA Exemption 6,
which allows government agencies to withhold materials when
disclosure would constitute a "clearly unwarranted invasion of
personal privacy."
An Exemption 6 analysis requires a court to balance the
public's interest in disclosure against the privacy interest in
confidentiality. The 11th Circuit Court of Appeals decided that the
public interest in access to addresses of individuals who requested
disaster relief from FEMA outweighs any privacy interest in the
In considering the public interest, the court "easily" concluded
that the interest in learning whether FEMA properly handled
billions of taxpayer dollars after the 2004 hurricane season
goes to the core purpose of FOIA, which is to shed light on the
operations and activities of government.
The court rejected FEMA's argument that the public interest
had already been served by two government investigations and
by the release of disbursements broken down by zip code. FEMA
itself disputed the government's findings and had outwardly

cautioned against system-wide extrapolation
from the limited investigations. The court
also found that ZIP codes were too large a
geographic area to meaningfully analyze.
The court found that the public interest in
determining how FEMA disbursed aid dollars
in response to the four hurricanes and other
disasters was "undeniable and powerful,"
and that release of the addresses would "go a
long way" in answering the questions about
FEMA's disbursement process that arose
following the 2004 hurricanes.
The court also rejected the contention that
applicants' privacy may be violated if they

were contacted by the newspapers.
"[I]ndividuals are under no obligation to speak to reporters,
and on balance, the modest annoyance of a 'no comment'
is simply the price we pay for living in a society marked by
freedom of information laws, freedom of the press, and publicly-
funded disaster assistance."
The 11th Circuit considered the balancing of the respective
interests to be a fairly easy task, finding a po\ CILful" public
interest that outweighed a privacy interest that could not "be said
even to rival this public interest, let alone exceed it."
The court held that FEMA did not even "come close to
meeting its heavy burden" to justify application of Exemption
6 and ordered the agency to release the damaged location
The 11th Circuit's opinion sends a clear message to
government agencies that the expenditure of public funds is
entitled to public scrutiny. Once the information is released, the
public will have the opportunity to determine for itself whether
FEMA properly handled billions of taxpayer dollars after the
2004 hurricanes and other disasters.

Rachel E. Fugate and Deanna K. Shullman, with the law firm
Thomas & LoCicero PL, and David Bralow, Tribune Company,
represented the South Florida Sun-Sentinel in this matter

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