Volume 32, Number 3 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
Bush moves FOIA Ombudsperson
WASHINGTON, D.C. Even though
Congress passed and President Bush
signed the Open Government Act
of 2008, which placed the Office of
Government Information Services (OGIS)
at the National Archives and Records
Administration, the Bush Administration
has moved the $6 million funding package
for an ombudsperson to the Department of
"Such a move is not only contrary to
the express intent of the Congress, but it
is also contrary to the very purpose of this
legislation to ensure the timely and fair
resolution of American's FOI requests,"
Sen. Patrick Leahy, D-Vt., said in a Senate
The Open Government Act placed
the OGIS at the National Archives after
critics said the Justice Department failed
to address chronic backlogs of requests for
information from the public and the media.
If the OGIS does move to the Justice
Department, it will be handling disputes
over records from many of the federal
agencies already represented by the Justice
Source: Austin-American Statesman
State Attorney found 'no evidence'
that mayor violated Sunshine Law
FORT PIERCE The State Attorney's The complaint, which was filed by
Office said it found "absolutely no Pollyanne Wester, raised concerns that
evidence" that Mayor Bob Benton and Benton and the two commissioners
two unnamed city commissioners violated discussed the appeal behind closed doors.
the Sunshine Law when they decided to The investigation report found that City
hear an appeal regarding the A C C E SS Manager Dennis Beach
demolition of the historic A C C S had called Benton and the
Governor's House. other commissioners to
"I've always obeyed MEETINGS get a consensus in order to
the Sunshine Law and was add the item to the agenda
very surprised about the complaint. It but that they had not discussed how they
was absurd, and I'm just glad it's over," planned to vote.
Benton told the Ft. Pierce Tribune. Source: Ft. Pierce Tribune
School board members cleared of
possible Sunshine violations
COLLIER COUNTY The State
Attorney's Office dismissed allegations
that three Collier County School Board
members violated the Sunshine Law after
completing a preliminary review.
Board Chairwoman Linda Abbott
and board members Steve Donovan
and Richard Calabrese were accused
of conspiring in private to fire former
Superintendent Ray Baker last year.
"Concerns about whether the board
made the correct decision, or about the
timing or procedures used in the firing
or hiring of a superintendent are outside
our legal authority," wrote Assistant State
Attorney Dean R. Plattner in an October
"Nothing additional has been
forthcoming, however, therefore, we have
no basis upon which to open a criminal
investigation at this time," said State
Attorney Stephen B. Russell, according to
the Naples Daily News.
Source: Naples Daily News
FORT LAUDERDALE- The
Federal Emergency Management
Agency will pay 75 percent of the
South Florida Sun-Sentinel attorney
fees following a legal battle for the
identities of disaster-aid recipients of
FEMA agreed to pay more than
$146,000 to the newspaper, ending the
legal battle that began in March 2005
when FEMA refused to release the
names or addresses of aid recipients
because of privacy concerns.
In a related suit with The News-
Press (Fort Myers), FEMA agreed to
pay it more than $100,000 in attorney
Source: South Florida Sun-Sentinel
Tribune sues for
TAMPA- The Tampa Tribune sued
the University of South Florida in the
Hillsborough Circuit Court for access to
records containing the names of tutors used
by the university athletic department's
Academic Enrichment Center.
Although the university released a
list of the ACCESS
tutors to the
the complete list, citing student privacy
laws. The partial list contained the names
of tutors who were not students at USF.
The Tribune contends that the full list
of the tutors should be released under the
Florida Public Records Law.
Source: The Tampa Tribune
ACCESS RECORDS CONTINUED
Everglades cleanup efforts may be kept secret
FORT LAUDERDALE The South
Florida Water Management District
(SFWMD) will pursue a $10 million
program to jump-start "clean technologies"
research, but the initiative might be
exempt from the Public Records Law.
SFWMD contends that companies
equipped to create water-cleaning
technologies would not participate if
their practices were subject to public
scrutiny, according to the South Florida
The proposal includes the appointment
of three trustees, who would create a new
entity responsible for operating the fund,
and the appointment of a fund manager.
Although advisory boards and other
appointed government bodies are subject
to the Florida Public Records Law,
SFWMD attorneys will ask the Florida
Records left vulnerable in trash
BROOKSVILLE Public records
of the Hernando Circuit Court that are
earmarked for destruction will no longer
be left in easily accessible trash bins in the
public recycling area.
Hernando's vulnerable record-disposal
system was discovered after a citizen
complained that he had found documents
containing citizens' personal information
dumped in easily accessible trash bins
in the Hernando County Government
Center's recycling area.
Hemando County Clerk of the
Circuit Court Karen Nicolai said she is
implementing a new system in which
documents set for disposal will be kept in
"I guess I didn't realize how easy those
bins were to access. We've been doing
it that way for years," Nicolai told the
St. Petersburg Times.
Source: St. Petersburg Times
Public record copy fees waived for
county employees, agencies
COLLIER COUNTY Collier County the free-record service to the county
commissioners unanimously approved government.
new rules that allow county employees, In practice, the county was already
members of the county advisory boards providing its government officials with
and individual county commissioners cost-free records, but the vote made the
to make public records requests without practice official.
incurring the usual copy charges. The general public still has to pay
The rules also allow other government 15 cents per page for copies of public
entities to request records from the county records.
free of charge as long as they reciprocate Source: Naples Daily News
Bar task force reviews limitations
LEON COUNTY The Florida Bar's
Attorney-Client Privilege Task Force
will study limitations on the attorney-
client privilege created as a result of legal
representation for public agencies, which
are subject to the Florida Public Records
Although exceptions exist for attorney-
client privilege between public agencies
and their attorneys, the laws are difficult
to implement and sometimes fail to
protect the privilege, according to Marcos
Jimenez, chair of the task force studying
Jimenez noted that conflicts sometime
arise because the law allows a public
agency to meet with its attorney in private
to discuss ongoing litigation, but a court
recorder must take a transcript, which
becomes public record once the litigation
"[G]ovemment agencies right now
have a hard time securing advice from
their counsel without running into a lot
of issues... A client who cannot consult
with his attorneys outside his opponents'
presence may face insurmountable
obstacles," Jimenez told the Florida Bar
Source: Florida Bar News
Legislature to exempt the proposed
venture capital fund from public disclosure.
Governing board member Harkley
Thornton said the potential environmental
and fiscal benefits are "legitimate" reasons
for an exemption.
Periodic fiscal reports would allow
public oversight of the fund, Thornton
Source: South Florida Sun-Sentinel
for escort ads
ORLANDO Three advertising sales
representatives from the Orlando Weekly
were arrested in a sting operation after
police videotaped Weekly employees
selling advertising space to undercover
officers who openly claimed to be
The employees were charged with
aiding and abetting prostitution and
profiting from it. The Weekly was
indicted for racketeering and was
accused of knowingly profiting from
According to The Associated Press,
the free alternative paper contends the
arrests infringed on its First Amendment
"These charges are outrageous and
we are confident they will be dismissed
in due course. The arrests are a blatant
attempt to infringe upon the First
Amendment rights of this newspaper
and its advertisers," said Rick Schreiber,
the Weekly 's publisher, in a statement.
The Weekly said the crackdown was
retaliation for stories it published that
were critical of the organized crime task
force that conducted the sting.
Source: The Associated Press
EDITOR'S NOTE -Each month,
The Brechner Report compiles news and
information about media law issues across
Florida and the nation. Our sources for
these stories are often other media outlets,
newspapers, and the Internet. In an effort
to help our readers track stories of interest,
we now include our primary source of
information following each story.
2 The Brechner Report U March 2008
DOJ may seal
WASHINGTON, D.C. A recent
Department of Justice proposal to the
Judicial Conference of the United States
would eliminate online access to all
nonsealed plea agreements in criminal
Such records would remain available
for inspection by the public at federal
Nonsealed criminal plea agreements
are currently available online via an
electronic public access service called
Public Access to Court Electronic Records
The service allows users to obtain
case and docket information from federal
appellate, district and bankruptcy courts,
and the U.S. Party/Case Index.
The DOJ argues that public access
to defendants' names might make them
vulnerable to intimidation or retaliation
because defendants often promise to
cooperate with the government.
But making public access to records
inconvenient won't necessarily improve
security, according to some experts.
"Those bent on exploiting public
records for improper purposes are the
least likely to be deterred by attempts to
make them harder to access," said Laura
L. Prather, co-chair of the American
Bar Association Section of Litigation's
First Amendment and Media Litigation
Committee, according to l ,,lr ., News.
Source: I, a,, ,. 'i, News
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The BrechnerReport is published 12 times a
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Society of Newspaper Editors and the Joseph L
Court rejects mayor's effort to
delete parts of critical report
WEST PALM BEACH The 4th of public officials, the comments were not
District Court of Appeal ruled that portions unlawful."
of a grand jury report about a government Frankel contends that she stopped the
official's alleged manipulation of a public rebroadcast because the city's police chief
meeting rebroadcast will not be deleted had expressed concern that discussion
from the report. at the meeting might cause racial strife
The investigation criticized Mayor Lois among residents. An hour after halting the
Frankel's delay of a 2004 rebroadcast on rebroadcast, Frankel allowed it to resume.
the city's public access cable channel of a Although the court's decision will
city meeting in which citizens criticized the allow the contested language to remain
city's efforts to fight crime. Frankel has not in the record which eventually becomes
been charged with a violation of the Public public Frankel told the Palm Beach Post
Records Law. that wasn't her main concern. She said she
Judge Robert Gross wrote in the wanted city staff to be able to interrupt
appellate ruling, "As the challenged broadcasts for emergency purposes
language in the report was a part of the without violating the Public Records Law.
grand jury's investigation into the conduct Source: Palm Beach Post
ACCESS MEETINGS CONTINUED
Closed-door consensus questioned
MARCO ISLAND In a closed-door Open Meetings Law. Gabriel told the
session, the Marco Island City Council Bonita Daily News that the consensus
decided to appeal a ruling declaring reached at the meeting was not an action.
Marco's boat anchoring ordinance "There was no formal vote. It was like
unconstitutional, a workshop. People just sat and talked,"
Before the council's regularly Gabriel told the newspaper.
scheduled open meeting. City Manager Councilman Glenn Tucker also denied
Bill Moss and attorneys Alan Gabriel and
Dan Abbott met with council members
in what Council Chairman Mike Minozzi
called an "attorney-client session."
But the closed meeting raised concerns
over whether the council's decision
constituted decisive action in a closed
meeting, which is prohibited by the Florida
that a vote had occurred.
"If there was a vote to take we
would have done it in a public meeting.
Earlier we had decided to proceed with
prosecution. We simply had a consensus
not to curtail that," Tucker told the Bonita
Source: Bonita Daily News
Manager hired with little notice
PINELLAS COUNTY State officials was originally scheduled.
and media attorneys criticized the Tampa According to the St. Petersbur
Bay Water utility board after it held what the utility's general counsel, Rich
they considered an unannounced meeting Lotspeich, argued that the utility
to vote for a new general manager. the law.
Tampa Bay Water, the state's largest "If nobody showed up, that's r
regional wholesale utility, usually problem," Lotspeich said.
advertises a notice of its board meetings The board's actions were critic
and the agendas on the utility's Web site. Pat Gleason, Florida's Director ol
But the meeting in which the vote for Affairs and Special Counsel for C
general manager occurred was advertised Government.
in an obscure publication that circulates to "I've never seen anything like
only a few lawyers and two dozen public You can question whether there's
libraries. commitment to open government
With minimal notice to the public, the Gleason told the St. Petersburg T,
board held the meeting 10 days before it Source: St. Petersburg Times
The Brechner Report U March 2008
University of Florida
Brechner Center for Freedom of Information
3208 Weimer Hall, P.O. Box 118400
Gainesville, FL 32611
Permit No. 94
F UNIVERSITY of
Openness, transparency ma
Florida's Government-in-the-Sunshine laws give our
citizens an extraordinary opportunity to participate in
government at all levels. President Abraham Lincoln
said, "Government [is] of the people, by the people,
[and] for the people." His words remind us that the
people of Florida, our boss, hold us accountable for
serving them well. Such transparency is vital to
our democracy, which is why my first official act as
Governor established the Office of Open Government
(E\icutl\ c Order 07-01). Since its creation, the Office Charl
of Open Government has opened the window into
Florida's government processes even wider. We then launched a
Web site that conveniently locates public records information for
all state agencies (www.flgov.
The com/oghome). In addition,
Back Page most state agency Web sites
B ack P now feature a link to open
By Charlie Crist government information.
In December, we announced
a new partnership with Google that is making it easier to
access public information through the Internet. We learned that
search engines could not access information on state Web sites
because it was stored behind a database. Now, with improved
technology, search engines can access and index records such as
the Department of Environmental Protection's reports regarding
water and waste permitting and the Department of Education's
information on individual schools. Other Florida agencies that
can be accessed include Department of State, Department of
Business and Professional Regulation, Florida Department of
Law Enforcement and the Agency for Workforce Innovation.
Additional agencies are working to make their Web site
We also continue to educate state employees about Florida's
open government laws. A partnership with the Florida Institute
of Government at Florida State University allowed us to provide
free Sunshine Law training to 500 state agency managers. At last
count, about 900 state employees had registered for the training
- up 1,400 percent from 2006.
To receive input from experts on open government, I created
the Commission on Open Government through Executive Order
07-107 in June. I charged the Commission to Ic.\ ic\ evaluate,
ke government accountable
and issue recommendations concerning policies, statutes,
S and Article 1, Section 24 of the Florida Constitution,
relating to the public's right of access to government
meetings and records."
Commission members are holding public hearings
throughout the state to understand how to reform Florida's
Sunshine Law to better benefit the people. They held
three public hearings and meetings last year and plan
to hold another later this year. Last August, citizens
ie Crist suggested that Florida open the clemency process to
applicants. In response, on October 31 we opened
some secrecy provisions in clemency documents. In addition,
Commission member Secretary Butterworth recommended
that the Commission endorse legislation to make Department
of Children and Families' records more open in child and adult
Citizens also pointed out problems with open records
enforcement and suggested a "bill of rights" for requesting
government records and attending meetings. In response,
we created an Open Government Bill of Rights for state
agencies through Executive Order 07-294 on November
15. The Commission, in partnership with the Office of Open
Government, is responding to your requests and suggestions.
By the end of the year, the Commission will report to
me, the Senate President, and the Speaker of the House
of Representatives with additional suggestions and
recommendations for strengthening Florida's open government
laws. Meanwhile, the Office of Open Government continues
to be an important advocate for the people of Florida, making
sure every Floridian has access to public records, meetings and
information throughout all levels of government in Florida.
This month we celebrate Sunshine Week, March 16-22, which
honors Florida's open public records laws and reminds us of their
significance and importance. For me, open government is how
we do business. Our democracy is dependent on the government
operating in the sunshine during Sunshine Week and every day
of the year.
Charlie Crist is the 44th governor ofFlorida. The
Commission on Open Government can befound at http:/www.