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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: November 2007
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Bibliographic ID: UF00090012
Volume ID: VID00095
Source Institution: University of Florida
Holding Location: University of Florida
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THE


BRECHNER


REPORT

Volume 31, Number 11 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
November 2007

Fla. Supreme Court issues revised records policy


TALLAHASSEE The Florida member
Supreme Court has issued a revised Committi
interim policy on the electronic release The n
of court records, expanding access to allowing
information about criminal
defendants and providing ACCESS
general remote access to
some files for attorneys. COURTS
The revised interim
policy was issued more than a year after of traffic
the first policy was enacted, based on apparently
recommendations from the Committee license n
on Access to Court Records. The 15- The n

Board agrees to oper;
PALM BEACH COUNTY A land "Yes, i
trust formed last year to create and a stand ar
preserve affordable housing finally and for af
agreed to operate under Florida's open member I
government laws, although sunshine,
some board members were ACCESS
reluctant to do so. j
The county and the MEETINGS
Community Land Trust of
Palm Beach County spent
months wrangling over a contract that between t
would require the county to provide the a head thi
trust with $200,000 per year for two County C
years, but would also require the trust to acre parc
operate in the Sunshine. Habitat fc


Committee is the successor to the
ee on Privacy and Court Records.
ew policy expands access by
the electronic release of the
full birthdates of criminal
defendants, a move that
will assist in confirming the
identities of individuals. The
policy restricts access to images
infraction citations, however,
y to avoid the release of driver's
umbers.
ew policy also clarifies that it

ate in open
t is unfair, but we have to take
id the stand is for the public
fordable housing," said board
Hazel Lucas. "If it be (in the)
so be it."
The trust is a nonprofit that
will buy property and build
and sell homes, retaining the
titles to the land so that it can
remain affordable. Tensions
he county and the trust came to
s summer, when the Palm Beach
commission voted to give a 5.6-
el of land slated for the trust to
r Humanity.


Lawmakers want report sealed


WEST PALM BEACH South Florida released its
lawmakers have continued their challenges Frankel
to the release of a grand jury report, now to seal the
hoping the Fourth District Court of Appeal Beach Post
will reverse a lower court's ruling that the hired attor
report should be open to the public. The the grand j
grand jury was convened
to examine the role of COURTS
campaign contributions in '
city contracts and project
approvals, group to co
City of West Palm Beach Mayor Lois reelection c
Frankel and state Rep. Mary Brandenburg The por
took legal action to keep parts of the remain seal
original report sealed. The grand jury Fourth Dist


report Jan. 31.
attempted to keep her effort
report a secret, but The Palm
Slater revealed that she had
ley Bruce Rogow to challenge
jury's conclusions as improper.
Rep. Brandenburg told The
Post she is challenging
allegations in the report that
she pressured a nonprofit
tribute to the mayor's
campaign .
tions of the report at issue
led pending a decision by the
strict.


is not applicable to court administrative
records or digital recordings of judicial
proceedings. Finally, attorneys may
now be provided with "general remote
electronic access" to certain cases so
long as the cases and particular files are
not confidential. The policy continues to
allow access to progress dockets, limited
information on parties, official records,
and all appellate court filings. Certain
high-profile cases or cases in which a state
agency is a party will remain available
electronically.

Suit prompts

records release
MANATEE COUNTY A public
records lawsuit filed by a local
government watchdog prompted the
Manatee County School Board to
release appraisals it had completed on
a $15.75 million building it purchased.
Longtime school board critic David
Miner filed the suit after the school
district said it would not release the
records until 30 days after the contract
to buy the building was agreed upon.
"What we have is a public body,
our school board, agreeing to obtain
property for $15.75 million, without
the public having a right to see the
appraisal even if there are confidential
parts that could be redacted," Miner
argued before Circuit Judge Paul
Logan.
School board lawyer John Bowen
agreed to release the appraisals, though
the building's floor plan was redacted.
Bowen announced during closing
arguments before Judge Logan that the
board would release the records. Logan
said he would consider the possibility
of awarding attorney's fees to Miner.
The school district plans to use the
building and 18 acres to consolidate
employees throughout Manatee County,
according to The Bradenton Herald.






DEFAMATION


Judge dismisses slander suit against News-Journal


PENSACOLA A slander lawsuit
stemming from a poll conducted in
preparation for another lawsuit, both
brought by Joe Anderson Jr. against
the Pensacola News-Journal, has been
dismissed by a circuit court judge.
Anderson's first suit against the News-
Journal is currently pending review by the
Florida Supreme Court and involves his
allegation that the newspaper placed him
in a false light.
In preparation for that trial, the News-
Journal and parent company Gannett
Co. hired a research company to do a


TALLAHASSEE The Florida
Elections Commission has rejected a
complaint by state Rep. Paige Kreegel
alleging that attack ads distributed in the
2004 election were false and malicious.
Kreegel filed the complaint 18 months
prior to the Commission's decision not
to pursue formal charges against political
consultant Randy Nielsen and the Florida
Home Builders Association, according to
the St. Petersburg Times.
Kreegel's complaint stemmed from


community telephone poll in order to
develop information for jury selection and
trial strategy. Anderson learned about the
poll during the December 2003 trial for
the false light lawsuit.
Anderson's lawyers then requested
access to the names of the 400 people
surveyed to determine if any potential
jurors were on the list.
Trial judge Michael Jones ordered the
research company to turn over the names
to Anderson's lawyers, but required the
names be kept private and used only
to determine if anyone surveyed was a


last-minute campaign ads mailed to voters
that highlighted lawsuits filed against
Kreegel as well as a criminal mischief
charge that was dismissed.
Elections general counsel Charles A.
Finkel determined that the accusations
against Kreegel were protected by the
First Amendment.
In addition to the complaint to the
Elections Commission, Kreegel also filed
a libel lawsuit that is still pending in the
courts.


Presidential search committee

under fire for anonymous ballots
FORT MYERS The Florida Gulf semifinalists. However, when the FGCU
Coast University presidential search committee voted to narrow the pool to
committee changed its anonymous voting three, members put their names on the
procedures after media reports criticized ballots.
the committee's use of anonymous The university's attorney and human
ballots. A spokeswoman for resources department
the State Attorney's Office A C C E SS supported the use of
said no formal complaints anonymous ballots, despite a
had been filed against FGCU. RECORDS statement in the Government-
"We are monitoring in-the-Sunshine Manual to the
the situation with FGCU and the contrary.
alleged Sunshine Law violations," said FGCU general counsel Vee Leonard
spokeswoman Samantha Syoen, according cited a previous case that supported the
to the Naples Daily News. "Generally, we use of anonymous ballots. Florida's
don't launch an investigation on a news special counsel for open government, Pat
report." Gleason, suggested the committee err
The committee previously used on the side of openness. The committee
anonymous ballots to narrow the opted not to re-vote or sign the existing
applicant list to 10 candidates, then to six anonymous ballots.


member of the jury pool.
Anderson himself apparently copied
the list and hired private investigators to
interview people surveyed. He then filed
another lawsuit against the News-Journal,
this time claiming the pollsters asked
defamatory questions.
Judge Terry Terrell dismissed the
second lawsuit, noting that Anderson
violated the trial judge's "simple, concise,
unambiguous ruling," and that attorneys
have flexibility regarding conduct
and statements made in the course of
litigation.

Poll statute's

impact unclear

TALLAHASSEE The Florida
Elections Commission rescinded
an advisory legal opinion in late
August, choosing instead to interpret
a Florida statute in favor of political
committees.
The original opinion was issued in
response to a letter from the political
committee Red and Blue Florida. Red
and Blue wanted to know if it could
collaborate with other committees to
poll voters regarding ballot issues.
An elections attorney for the
Commission wrote that based on the
applicable Florida law, only candidates
were expressly allowed to poll voters.
After political activists criticized
the interpretation, the Commission
revisited the issue and released
another advisory opinion.
"[G]iven the history of the
statutory provision and because
polling activities implicate the First
Amendment right to free speech, it
is reasonable to conclude that the
legislature did not intend to infringe
upon this right any more than
necessary to accomplish its expressed
goal of regulating candidate polls,"
wrote elections attorney Amy Tuck.
"Therefore, although the language
of the statute is not entirely clear,
we believe the better interpretation
is to construe its purpose as being to
impose restrictions upon candidate
polling without imposing any similar
restrictions upon issue polling," Tuck
wrote.


2 The Brechner Report U November 2007


FIRST AMENDMENT


Commission declines ad dispute







ACCESS MEETINGS


Official initiates closed meeting; council objects


LAIVWA A iillsoorougn County council, of which he is not a member, to stopped the closed meeting minutes
commissioner's decision to hold an discuss wetlands issues. After about an "The (agricultural advisory) council
advisory council's meeting behind closed hour, Blair asked members of the public not meet in that manner; we do not 1
doors was quickly rejected by the council, and other guests, including the executive closed meetings," Gran said. "That
who stopped the closed meeting in order to director of the county's Environmental we stopped the meeting as soon as v
avoid violating the Open Meetings Law. Protection Commission, to leave, realized."
Commissioner Brian Blair attended The county's agriculture industry Blair had no comment on the me'
the meeting of the agriculture advisory development manager, Stephen Gran, according The Tampa Tribune.

Attorney General's Office weighs in on issues


later.
does
have
'swhy
e

eting,


TALLAHASSEE The Attorney
General's Office weighed in on several
open government issues this summer,
ranging from accident scene photo
accessibility to e-mails among public
officials. The opinions, both informal and
official, are summarized below.
How does the Public Records Law
apply to e-mails sent among public
ciicitl.\?
Informal Opinion, June 8, 2007:
E-mails made or received by agency
employees in connection with official
business are public records. The Open
Meetings Law also applies to e-mails
among public officials. As long as there
is no interaction among officials related
to an e-mail sent by one public official
(i.e., a county commissioner), then there
appears to be no violation of the Open
Meetings Law.
Are local health councils which are
provided for in Fla. Stat. s. 408.033
subject to the Open i ..., ir,, Law?
AGO 2007-27, June 26, 2007:
Yes. In determining whether a private

THE
BRECHNER
REPORT
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@jou ufl edu
Sandra F. Chance, J.D., Exec. Director/Exec. Editor
Christina Locke, Editor
Alana Kolifrath, Production Coordinator
Ana-Klara Hering, Production Assistant
Kimberly Lopez, Production Assistant
The BrechnerReport is published 12 times a
year under the auspices of the University of Florida
Foundation The Brechner Report is ajoint 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


organization is subject to the Open
Meetings Law, the Attorney General's
Office usually looks at factors related
to the relationship between the private
entity (the local health council) and the
public entity (such as the Department of
Health and the Agency for Healthcare
Administration). The local health councils
are established pursuant to statute, play
an integral role in the decision-making
process of the AHCA, their costs are paid
by assessments collected by the state, and
they are included within the definition of
a regional government entity for purposes
of the Florida Governmental Conflict
Resolution Act. Therefore, local health
councils are subject to the Open Meetings
Law.
May the request by the attorney for an
entity to meet in private pursuant to an
exemption to the Open i ... i.', ; Law be
made during a special i,... i,,1 1
AGO 2007-31, July 10, 2007: Yes.
The request for a closed attorney-client
meeting may be made during a special
meeting as long as the special meeting is


MIAMI The Third District Court
of Appeal has decided not to re-hear The
Palm Beach Post's request for access to
Rush Limbaugh's divorce settlement.
The panel of judges ruled 2-1 to deny the
motion for re-hearing, refusing to issue a
written opinion.
Limbaugh and his former wife, Marta
Miranda, divorced in 2004. They signed
a 22-page marital settlement agreement
which the trial court allowed not to be
filed with the court record.
The Post filed a motion requesting the
settlement be filed with the court, which
the trial court denied. The Third District


open to the public, notice has been given,
and minutes are taken.
Are photographs taken by the medical
examiner s ,,. ,ii,,ir. a,' at the site of
an automobile accident exempt from
disclosure under Florida 's Public Records
Law?
Informal Opinion, July 25, 2007: Yes.
In AGO 2001-47, the opinion concluded
that crime scene photographs were not
included within the scope of the Fla. Stat.
s. 119.07(1) exemption for autopsy photos.
However, the exemption would still apply
to photographs taken by the medical
examiner as part of the autopsy process.
May city commissioners, outside a
public ,ii., i ... exchange documents
that they wish other members of the
commission to consider on matters coming
before the commission for ,ificial action,
and ifso, what limitations exist?
AGO 2007-35: Yes. However,
commissioners are not permitted to
respond to the exchange of documents
or interact with each other related to the
documents prior to the public meeting.


chose not to disturb the trial court's ruling.
Judge Gerald Cope, however, did write
a dissenting opinion which stated that
the settlement agreement was a public
document under the plain language of the
Florida Constitution. Cope cited Article
I, Section 24 of the Constitution, which
declares records "made or received in
connection with . official business" are
public.
"The conclusion is inescapable that the
marital settlement agreement is a judicial
record," Cope wrote. He recommended
the case be remanded to determine whether
there was an applicable exemption.


The Brechner Report U November 2007 3


ACCESS COURTS CONTINUED


Court denies bid to re-hear case


"" "" "'" T1







THE
BNon-Profit Organization
BRECHNER U.S. POSTAGE
REPORT PAID
University of Florida Gainesville, FL
Brechner Center for Freedom of Information Gainsv
3208 Weimer Hall, P.O. Box 118400
Gainesville, FL 32611
November 2007









UF UNIVERSITY of
UFFLORIDA


Reporter vigilance necessary to prevent sealing abuses
Who knew a divorce case could unleash so many also revealed they occasionally super-sealed cases. After
secrets? There wasn't anything particularly salacious our story appeared, a few judges reversed their orders
about the divorce of two South Florida television hiding cases. Still, The Miami Herald sued to learn the
personalities when it first appeared on the court docket party names and case numbers for the vast majority of
in summer 2005. It wasn't until I went back a couple of super-sealed cases in Broward.
months later to review the court docket that secrets began Two months later, the clerk's office provided that
to emerge. A search on the Broward Circuit Court's Web list. On it were divorces and disputes involving judges,
site using the parties' names and case number yielded politicians, business people and other big shots.
no information. So on my next trip to the courthouse, I PatrickDanner Ultimately, we learned nearly 700 cases had been hidden
entered the case information into one of the computers through the years. The cases have since been restored
available for use by the public. Still nothing. to the electronic docket that the public can access. The
I then asked a court clerk to enter the case number into the Herald has successfully fought to have a few of the cases
electronic docket used by the clerk's office. On the screen in unsealed because they involved newsworthy individuals. But
red-flashing letters appeared "CONFIDENTIAL." I'd never most of the cases remain sealed.
The seen that before in my 15-plus Meanwhile, our investigation led us to another courthouse
years of reviewing cases at the secret this time in Miami-Dade. Court dockets had been
B ack P age courthouse. changed to cover up the felony convictions of two defendants,
By Patrick Danner I told my colleague Dan both of whom were informants for the Miami-Dade State
Christensen, who a few years Attorney's Office. The State Attorney's Office said it has been
earlier uncovered how cases in South Florida's federal court were an "established practice" for two decades for prosecutors to ask
concealed from public view. No law, though, allows for cases to judges to alter public records. Florida law, however, makes it a
be placed on a secret docket. crime for anyone, including judges and clerks, to alter or falsify
Now, something similar appeared to be happening in state court records.
court. So Dan and I set out to learn how pervasive the problem In April, the Florida Supreme Court ruled unanimously that
was in Broward. With no idea how many cases had been super- judges and clerks can no longer hide civil lawsuits from the
sealed, we asked the clerk's office for a list of cases that had been public. The practice threatens to "undermine public trust in the
made confidential between 2001 and 2006. The clerk's office courts," the ruling said.
ultimately produced a list of 107 cases that had been kept on a Not all judges in Broward and Miami-Dade have a firm grasp
secret docket. They included divorce, negligence, malpractice and of the new rules on sealing. Recently, we found 12 of 16 sealing
fraud cases. orders issued since the new rules took effect didn't comply with
But that's all we had. We still didn't have case numbers or the requirements. Within days of our report, a Miami-Dade judge
parties names. Only through interviews with officials in the voided his own order intended to seal a court file "until the end of
clerk's office and judges, as well as reviewing related cases, were the earth."
we able to flesh out some details about a few of the super-sealed While one can hope the new Supreme Court rules put an end
cases. The judges we interviewed said they never intended for to the harmful practice of super-sealing court records, reporters
whole cases to disappear. The chief judge said the clerk's staff should remain vigilant. Reporters should routinely check sealing
members might have misinterpreted court orders to mean they orders to determine whether the matter is newsworthy, but also to
should be taken underground. The clerk countered that his office make sure judges are adhering to the new sealing requirements.
only followed the judges' instructions. The Miami Herald's Patrick Danner and Dan Christensen are
Regardless of the reason, we learned the practice wasn't the 2007 Brechner FOIAward winners. Visit breclnerurgQ ,30
limited to Broward. Clerks in Palm Beach and Pinellas counties for an interview with the authors and copies of the original stories.




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