Title: Brechner report
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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: June 2008
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Bibliographic ID: UF00090012
Volume ID: VID00102
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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THE


BRECHNER

REPORT


Volume 32, Number 6 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
June 2008
Ex-reporter appeals $5,000 per day contempt order


WASHINGTON Former USA Today The U.S. Court of Appeals in
reporter Toni Locy appealed a district Washington, D.C. issued a stay until it
court judge's contempt order imposing could rule on the order.
fines of up to $5,000 per day from Nine months after former Attorney
Locy's own pocket -R R T General John Ashcroft
for refusing to revealR E PO R T E R -S publicly revealed that
confidential sources. PRIVILEGE Steven Hatfill was a
U.S. District Judge "person of interest" in
Reggie Walton issued the unusual order the federal probe of anthrax letters sent in
after Locy refused to disclose the names September 2001 that caused five deaths,
of sources who identified a former Army Locy published stories outing Hatfill as a
infectious disease researcher as a suspect suspect.
in a federal investigation into terrorist Hatfill sued the government for
attacks. Walton prohibited Locy from invading his privacy by disclosing
receiving assistance in paying the fines, information to the press about the probe.


Locy's attorney, Robert Bemius, argued
that the appellate court should overturn the
contempt order because Locy could not
recall the names of the sources and Hatfill
could pursue his case without Locy's
testimony, according to USA Today.
During oral argument, Justice Douglas
Ginsburg said the reporter's privilege,
which protects journalists who refuse to
reveal confidential sources, "is supposed
to yield only in the exceptional case,"
according to USA Today.
The panel did not say when it would
rule on Locy's appeal.
Source: USA Today


University of Florida to examine students' e-mails
GAINESVILLE The University UF officials said the privacy office The investigation stemmed from
of Florida will examine student and is authorized to read through student news reports based on a leak that the
faculty e-mails to identify the source e-mails. medical school admitted an applicant
of confidential information about a "We reserve the right to go through who had never taken the Medical
controversial medical school admissions anyone's e-mail College Admissions Test, according
decision made by the recently-ousted dean when there is D T A/ to reports in The Sun.
of UF's College of Medicine. an appropriate IV A Y Although the student did not
UF's Privacy Office said it will scan justification to and have the support of the admissions
the e-mail accounts of the 28 people, do so, and in A C C E SS committee, the former dean of the
including students, identified in its privacy this case (there college, Dr. Bruce Kone, said he
investigation, is a) potential overruled the decision because the
While the federal Family Educational violation of federal laws," said UF student was "exceptional," according to
Rights and Privacy Act generally protects spokesperson Janine Sikes, according to The Sun.
student records, during an investigation The Gainesville Sun. Source: The Gainesville Sun

Jail employee may have leaked sealed murder record
BROWARD COUNTY A sheriff's authorities had sealed Villegas' arrest was allowed to happen or whether it was
detention employee was suspended records, which under Florida law are inadvertent," said Jim Leljedal, spokesman
following allegations that she leaked a public documents. However, the records for the Broward County Sheriff's Office,
sealed arrest report in a murder case to a were later unsealed after the South Florida according to the South Florida Sun-
television station. Sun-Sentinel and The Sentinel.
Divan Hicks-Badger was named A C C E SS Miami Herald sued to Authorities involved in the murder
as the source of a confidential open those records to the investigation had tried to keep details of
affidavit in the murder case of IRECOIRDS public, the case confidential until a grand jury
Melissa Britt Lewis, a South Hicks-Badger is could decide whether to indict Villegas.
Florida attorney who was found dead in a a civilian employee responsible for "I just wish that when we have these
Plantation canal in March. safeguarding inmates' legal documents, mechanisms in place, people would honor
The affidavit is part of the arrest record "We're trying to determine whether the confidentiality agreements," said
for Tony Villegas, who is accused of [Hicks-Badger] allowed a news reporter Plantation Police Chief Larry Massey,
strangling Lewis. to view the closed case file. We need to according to the Sun-Sentinel.
At the time of the affidavit's release, determine whether this was something that Source: South Florida Sun-Sentinel






REPORTER'S PRIVILEGE CONTINUED

Court quashes subpoena for reporter's notes


JACKSONVILLE A 4th Circuit court
granted a motion to quash a subpoena that
sought a reporter's testimony and notes
related to an article about the alleged affair
between a local female teacher and her
former student.
The court presiding over the divorce
case of the teacher, Jennifer Porter, and her
husband, Scott Porter, held that a part-
time freelance reporter meets the statutory
definition of a "professional journalist"
under Florida's shield law.

DEFAMATION


Court dismisses

defamation suit
SARASOTA- The Sarasota Circuit
Court dismissed a 2006 defamation suit
filed by an elementary school principal
against a TV news station after 10 months
of inactivity on behalf of the plaintiff in
the case.
Palmetto Elementary Principal
Eddie Hundley claimed Ric Russo, the
assignment manager for WWSB-TV,
ABC7 at the time of the suit, and Kay
Miller, the station's news director, spread
misinformation about Hundley's 2002
arrest for stalking, a charge that had
been dropped, according to the Sarasota
Herald-Tribune.


The subpoena commanded Susan Clark
Armstrong, the author of the article in
Folio Weekly, an alternative news weekly
in northeast Florida, to appear for a
deposition and to bring her notes.
The court rejected Porter's argument
that Armstrong's status as a part-time
freelance reporter, which earned her a few
thousand dollars a year, did not qualify her
for protection under the state shield statute.
The court held that Armstrong was a
"professional journalist," as defined by the


principal's

against station
Although the station never aired
a report on Hundley's arrest, his suit
against the station claimed Russo
recruited other parents to pass out copies
of Hundley's arrest report in front of
the school but failed to disclose that the
charge had been dropped. Russo denied
the allegations.
Hundley also alleged that Miller
contacted local school officials in 2005 -
three years after the original arrest and
told them Hundley was recently arrested
for stalking.
Sources: Sarasota Herald-Tribune
and court records


Tri-state negotiations with

private utilities kept confidential
WASHINGTON Officials from Begos, executive director of the Franklin
Alabama, Florida, and Georgia have County Oyster & Seafood Task Force,
joined in a confidentiality agreement according to the News.
with two private utilities, prohibiting The decision to keep the negotiations
the parties from disclosing to the public confidential comes amid a record drought
details of the ongoing in the region.
negotiations over regional AC C E S The two-decade-old water
water rights. A dispute centers on how much
A Florida seafood water is stored in federal
industry group asked MEETINGS reservoirs near the head of two
the Florida Commission river basins in north Georgia that
on Open Government to review and flow south into Florida and Alabama.
invalidate the plans, calling them The agreement was intended to allow
"illegal," said the Stuart News. the parties to negotiate openly amid a
"If Georgia Power and Alabama Power series of related court disputes, according
are in [negotiation meetings] why isn't to Sarah Williams, spokesperson for the
there a representative from the Florida Florida Department of Environmental
Seafood industry in there, or from one of Protection.
the environmental groups?" said Kevin Source: Stuart News


statute. In making its decision, the court
considered the fact that Armstrong had
worked as a freelance reporter for Folio
Weekly for more than a decade, during
which time she had written dozens of
investigative and feature stories.
The decision appears to be the first
written opinion of its kind, according to
Media and Communications.
Source: Media and Communications
published by the law firm of Holland and
Knight

School bans

book with "slur"
TAMPA An elementary school in
Hillsborough County pulled an award-
winning book from its shelves because it
contained a racial slur.
The Land by Mildred Taylor takes
place in post-Civil War Georgia and
contains use of a racial slur, according to
the St.Petersburg Times. The book was
challenged by Darryl Brown, an African-
American parent whose 11-year-old


daughter
attends
the
school.
A


FIRST
AMENDMENT


nine-member committee made up of
school administrators, parents and
teachers discussed the appropriateness
of the book, including its use of sexual
overtones, violence and racial language,
and decided the book was too mature for
its elementary school audience.
The vote was not unanimous,
however, and some parents expressed
disappointment about the school's
censorship action. School officials said
the book would be donated to a middle
school.
Brown said he felt the victory was
a step in the right direction but thought
the system that allowed the book into
the school in the first place needed to be
fixed. Kids will get plenty of exposure
to offensive language as they get older,
he said.
Brown said he will challenge The
Starplace by Vicki Grove next, again
for its use of the racial slur. He also
disagrees with Holly 's Secret by Nancy
Garden, which addresses the issue of gay
parenting.
Source: St. Petersburg Times


2 The Brechner Report U June 2008







ACCESS RECORDS CONTINUED

Court rules doctors' disciplinary records public


TALLAHASSEE Patients have a
right to check records on past mistakes
made by their doctors and hospitals
regardless of when the files were created,
the Florida Supreme Court ruled.
In a 4-3 opinion, the justices rejected
the hospitals' argument that the right
to inspect such records only applied to
documents created since November 2004,
when voters adopted a "patient's right to
know" amendment.
The Court also ruled that parts of a
law that restricted access to such records


created prior to the amendment's adoption
were unconstitutional.
The unsigned majority opinion
concluded the amendment was intended
to apply to existing as well as future
records because it refers to "any" records
and "any" adverse medical incidents.
Florida Justice Association President
Frank Petosa said the Court's decision
reflected the voters' intent.
"[Medical mistakes] should not
be swept under the rug in a cloud of
secrecy," Petosa said, according to the


Charlotte Sun.
In the dissenting opinion, Justice
Charles Wells wrote the majority's view
"is contrary to the law and fundamental
fairness."
Wells cited another state law that
keeps hospital's peer review records
secret and prohibits their use in civil
cases, an exemption intended to help
medical personnel speak in confidence
about past errors in order to prevent
future mistakes.
Source: Charlotte Sun


Florida House and Senate committees approve bill
TALLAHASSEE Committees in for children and adults who have been even get their own records from DCF,
both the Florida House and Senate passed through DCF's child care system to obtain I couldn't believe it," said Sen. Paula
separate versions of a bill to increase their own records from the agency. Dockery, R-Lakeland, according to the
access to records of the Department of Many DCF records are confidential Pensacola News Journal.
Children and Family Services. to the public and often contain sensitive Dockery sponsored the Senate Bill,
Both bills passed without debate and medical histories, but the blanket rule also SB 2762, and Rep. Will Weatherford,
with virtually no questions, according to prohibits people from accessing their own R-Wesley Chapel, sponsored the House
the Pensacola News Journal. records. Bill, HB 1467.
The bills pronose making it possible "When I found out neonle could not Source: Pensacola News Journal


Media group recommends revising appellate rule


TALLAHASSEE A group of
television stations and newspapers
submitted recommendations to the Florida
Supreme Court on the proposed Rule
9.050 of the Florida Rules of Appellate
Procedure.
Media General Operations and NYT
Management Services, Inc. recommended
the Court adopt a rule that encourages
minimization of personal information
THE
BRECHNER
REPORT

Brechner Center for Freedom of Information
3208 Weimer Hall, P O0 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
Kearston Wesner, Editor
Alana Kolifrath, Production Coordinator
Ana-Klara Hering, Contributor/Production Asst
Danielle Navarrete, Production Assistant
The Brechner Report 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


unnecessary to a court's determination of
the matter prior to entering the documents
into the record.
The Court intends to limit the inclusion
of certain unnecessary information in
court files in the first instance rather than
limit access to information contained in
court files.

Rule language that adopts a minimalist
approach would better meet this intent


HILLSBOROUGH COUNTY A
Tallahassee lawyer filed suit against the
Florida Department of Transportation,
asking for the release of records made
during multimillion-dollar negotiations
between the DOT and CSX Transportation.
Under Florida's Sunshine Law, the
public has the right to view state and local
government records that do not fall under
specific exemptions.
CSX asserted that documents outlining
its terms and positions contained trade
secrets exempt from disclosure under
the Sunshine Law and should be kept
confidential. The DOT agreed but did
not ask to review the documents before
making them exempt from public


and is consistent with the state's
open access policies, according to the
recommendations.
The proposed rule puts the onus on
the filers of documents with the court to
redact personally identifying information
in order to avoid subsequent denials of
record requests because they contain the
personal information.
Source: Thomas & LoCicero, PL


disclosure.
Attorney Mark E. Walker contends that
the DOT should not have agreed to let
CSX decide which records contained trade
secrets, which are exempt from public
disclosure under Florida's Sunshine Law.
"We allowed a private company to
pick and choose what will and won't be
disclosed," Walker said, according to the
Tampa Tribune.
The negotiations were part of a
$649-million project to buy 61 miles of
CSX commuter rail tracks in the Orlando
area, improve freight rail corridors
statewide, and run more trains to a hub the
company plans to build in Polk County.
Source: Tampa Tribune


The Brechner Report U June 2008


DOT sued for records created

in multimillion-dollar deal


- f- -.-.... r -.-.--.


r--r--





THE
BNon-Profit Organization
BREC HNE RU.S. POSTAGE
REPORT it N. 94
University of Florida Gainesville, FL
Brechner Center for Freedom of Information
3208 Weimer Hall, P.O. Box 118400
Gainesvllle, FL 32611
June 2008








U F UNIVERSITY of
UFI FLORIDA




Citizen Access Project gets online makeover
The Marion Brechner Citizen Access Project meetings laws.
(MBCAP), at www.citizenaccess.org, has a new look The MBCAP ratings are based on the judgments of
and new ratings for major categories of public records selected FOI experts who rate statutes, court opinions,
and meetings laws. Funded through an endowment and constitutional provisions on a scale of one to seven,
established by Orlando businesswoman Marion from the least open to the most open. The MBCAP
Brechner, MBCAP features ratings and comparisons of advisory board includes lawyers, journalists, professors,
the laws controlling access to government meetings and citizen activists, and government officials. The state laws
records in the 50 states. are summarized by law students and graduate students
In May, the MBCAP staff unveiled a comprehensive Bill with legal research training. The project staff tries to
redesign, offering more white space and a simpler Chamberlin ensure that review board members do not know which
type style. The Web site's pages are better organized state's law they are rating at a given time.
to emphasize key features. They better reveal the staff's The project's most important accomplishment, other than
continuous updating the laws. In addition, users will find it furnishing the ratings of more than 200 access-related categories,
much easier to find related categories, such as moving from perhaps has been the "mapping" of state laws. Because we
the overall rating for autopsy records for Florida to the law develop categories based on what the laws say rather than fit the
controlling access to autopsy photographs. Comparing laws of legal provisions into predetermined categories, we have been
multiple states also will be easier. The MBCAP Web site is now able to provide an accurate overview of state access laws in
The accessible through all major the categories examined and even reveal some provisions that
Bk P1 browsers, experts had not noticed. The Web site frequently has been used
D ad age MBCAP also now provides by journalists and by FOI activists fighting for changes in their
By Bill F Chamberlin overall ratings for the laws that state's laws. Since the site was created, academic research in the
By Bill govern fees for records and field has increased substantially. The MBCAP Web site also was
the laws that determine which government agencies are subject among the first to provide comprehensive, current and accurate
to the public records laws. We also now offer the ratings for information on articles written about access, access organizations
categories such as exceptions to the open meetings laws and to contact, and links to state laws. Links to audits of state official
access to autopsy records. performances also are available.
The last of the major records categories, except for the Although I am retiring as project director this summer, the
exemptions, will be available soon thanks to the MBCAP's College of Journalism and Communications is committed to
FOI911 initiative. In 2006, Mrs. Brechner provided $50,000 to continuing MBCAP.
fund a two-year effort to collect timely background information,
legal summaries, and ratings about issues being faced by FOI Bill Chamberlin served as the Joseph L. Brechner Eminent
advocates in state legislatures. The category of Penalties, Scholar in Freedom of Information since 1987 and was named
Appeals, and Remedial Actions is now being researched with the MBCAP director in 1999. He also served as the graduate
the help of FOI911 funding. FOI911 already has funded white coordinator of media law in the UF College ofJournalism and
papers about the use of electronic technologies to bypass open Communications and an affiliate professor in the Levin College
meetings laws and the nature of government agencies supervising ofLaw. He co-authored one of the leading textbooks in the field
public records access papers linked to the FOI911 logo on the and produced dozens ofscholarly and trade journal articles.
MBCAP home page. The FOI911 project also has provided This year he was named one of the Heroes of the 50 States by the
ratings for the new category on caucuses, a key issue in current National Freedom oflInformation Coalition and received special
legislative sessions. FOI911 also has funded open meetings j ..... -i,,from the Florida FirstAmendment Foundation for
research that allows FOI advocates to see what other states do to his efforts over the past 30-plus years as a teacher, mentor and
prevent officials from meeting outside the framework of open advocate of open government in Florida.




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