Volume 32, Number 8 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
Attorneys general support federal shield law
WASHINGTON Forty-one attorneys the same protection under federal law. that information, and this proposed
general, including Florida Attorney "By exposing confidences protected legislation would protect journalists who
General Bill McCollum, signed a letter under state law to discovery in federal are attempting to preserve that freedom,"
urging U.S. senators to support the Free courts, the lack of a corresponding federal said McCollum in a statement obtained by
Flow of Information Act, which creates a reporter's privilege law frustrates the the St. Petersburg Times.
qualified federal shield law. purposes R E P f i The FFIA is currently stalled
The FFIA gives journalists a qualified of the state T V in the Senate because it has not
privilege from disclosing confidential recognized PRIVILEGE been scheduled for a full vote.
sources to federal prosecutors, defense privileges The legislation passed the Senate
attorneys, and civil litigants, and undercuts the benefit to the public that Judiciary Committee by a 15-4 vote last
The attorneys, led by Attorneys General the states have sought to bestow through fall. Some of the delay is due to objections
Douglas Gansler from Maryland and Rob their shield laws," according to the letter, by the U.S. Justice Department that the
McKenna from Washington, explained in "It is essential for the public to have FFIA will interfere with law enforcement.
the letter that 49 states and the District of access to information pertaining to their Sources: St. Petersburg Times and The
Columbia recognized a qualified privilege government to hold it accountable. Often Reporters Committee for Freedom of the
under state law. The FFIA would provide it is members of the media who provide Press
County jail workers identified County settles
ORLANDO Four Orange County of the investigation.
Corrections Department officers under McCollum ruled that the documents records suit
investigation for allegedly staging "inmate were public after Orange County Attorney S G Highl
boxing matches" were identified to the Tom Drage requested a legal opinion. SEBRING Highlands County
media after Florida Attorney General "The courts and the attorney general commissioners settled a lawsuit filed
Bill McCollum ruled that have a long history of by a watchdog claiming that the county
interoffice memoranda on A C C E recognizing that documents failed to cop a rant application for
the matter are public. A C C E SS tangential to an investigation state funds to refurbish a high school
The officers Luis RECORDS are not investigative records as a hurricane shelter.
Escobales, Erick Mejia, exempt from disclosure," County Administrator Carl Cool
Samuel Cruz, and
Mark Caruso were reassigned to
administrative duty apart from inmates.
Jail officials initially refused to release
documents about the reassignment to the
Orlando Sentinel, claiming they were part
Relatives left off
SARASOTA- Although the Sarasota
County Sheriff's Office publishes the
names of all people arrested online, it
leaves off the arrests of law enforcement
officers and their relatives.
Sheriff's spokesman Chuck Lesaltato
said the records were left off because the
office's computer systems were unable
to redact protected information from
the reports, such as the addresses and
photographs of law enforcement officers
and their spouses and children.
said Sentinel attorney Deanna
Shullman, according to the Sentinel. "In
this case, we were dealing simply with
personnel records, and those are not
exempt from disclosure."
Source: Orlando Sentinel
Web arrest list
He said the office could withhold the
arrest reports from the website legally
because they are not the official record of
"I could pull that whole Web site
down tomorrow and still be within
the guidelines of the law," Lesaltato
said, according to the Sarasota Herald
The records are still available in hard
copy at the sheriff's headquarters.
Source: Sarasota Herald Tribune
saiU tle suit lacLIkU Illmit ULL ictfeau LICl
county could lose at trial and pay tens
of thousands of dollars.
Plaintiff Preston Colby received
over $9,100 in the settlement.
The grant at issue in the suit was
never awarded because the county
withdrew from the project. Colby
claimed the document the county failed
to copy "was a document that Carl
Cool signed on behalf of the school
board that he had no authority to sign,"
according to Highlands Today.
Cool said he signed the application
as a person with authority over Lake
Placid High school and as the county's
representative because in an emergency
the school would be a public hurricane
shelter under county control.
Source: Highlands Today
Board membership raises Sunshine concerns
WINTER SPRINGS The Winter
Springs City Attorney ruled that
a commissioner could serve on a
homeowner's association board without
a conflict of interest, but cautioned that
association meetings should not be used to
circumvent Florida's Sunshine Law.
Anthony Garganese ruled there
was nothing "per se" wrong with
Commissioner Don Gilmore serving on
the Tuscawilla Homeowner's Association
Garganese warned that there could be
Sunshine Law issues because Gilmore is a
member of the Board, and Commissioner
Rick Brown and Mayor John Bush are
THOA members who attend meetings.
Garganese said the members should just
avoid conversations among each other.
Brown called for Gilmore's
Officials: No Sunshine violation
MONROE COUNTY Monroe
County officials said no Open Meetings
Law violation occurred when the mayor
told the vice mayor of his plans to change
roles on the County Commission.
Former Mayor Sonny McCoy said
he told former Vice Mayor Mario Di
Gennaro on a plane ride that he planned
to relinquish his post, but indicated Di
Gennaro simply nodded in response.
Assistant County Attorney Bob
Shillinger said the conversation was not
an "exchange of information" in violation
of the Open Meetings Law. "Sunshine
violations can be a fine line. There has
to be an exchange of information and
there has to be dialogue," said Shillinger,
according to the Key West Citizen.
The Monroe County State Attorney's
Office received no complaints about the
Source: Key West Citizen
Sheriff's Office settles lawsuit
SARASOTA COUNTY The Sarasota
County Sheriff's Office settled a lawsuit
alleging the office failed to give the public
enough notice of disciplinary hearings.
The settlement agreement requires
the office to have training on open
government laws, amend its internal
rules, and pay $15,613 in attorney fees to
the plaintiff. In exchange, Scott Eliason
dropped his suit.
Eliason claimed the five-member
Civil Service Board failed to give the
public notice of an April 11 hearing
about Dan Tutko, who was demoted after
investigators said he illegally searched a
Tutko appealed the decision to the
Board, who reversed the demotion and
gave him a paid suspension instead.
Florida law requires public notice of
Source: Sarasota Herald Tribune
Law firm bills $160K for defense
LAKELAND A Tampa law firm
billed almost $163,000 to defend the
Polk County Opportunity Council against
claims it violated the Open Meetings Law
- even though the violators were only
fined $278 apiece.
Attorney Bill Grob of Tampa-based
Ford & Harrison billed the PCOC $240
per hour for research, briefing, and other
routine legal work after The Ledger
(Lakeland) asserted that PCOC officials
and lawyers met secretly in late 2005. The
State Attorney's Office charged 10 PCOC
board members with civil violations for
holding a closed-door meeting with then-
Executive Director Carolyn Speed and two
lawyers during a break in a regular public
In February 2006, County Judge Anne
Kaylor ruled that the board members
violated the Open Meetings Law and
levied the $2,780 fine.
Grob unsuccessfully attempted to
appeal the ruling three times, which
constituted a significant portion of the
The fees seem "to be a lot of time
and expense for what was a minor civil
infraction," said Rachel Fugate, a lawyer
for Tampa-based Thomas & LoCicero,
according to The Ledger.
The Ledger obtained the bills from
Grob only after suing for the records in
late March and negotiating with him for
Source: The Ledger (Lakeland)
resignation, saying "The THOA board
has the potential for being at odds with
the City Commission at times, and they
represent a large block of high tax-paying
citizens. [Gilmore] may not always be
able to recuse himself out of the financial
interests of the THOA and his obligations
to the city," said Brown, according to the
Source: Seminole Chronicle
TAMPA Officials used a public
records exemption to block the release
of information about 14 investment
properties owned by a firefighter running
for a seat on the County Commission.
Property Appraiser Mike Wells and
Tax Collector Mike Olson withheld
information about John Nicolette's
properties, including location and value,
and the taxes he paid.
Florida law allows public officials to
ask government agencies to withhold
their home addresses, telephone
numbers, and photographs. Investment
properties are public records.
"Addresses of properties that are
not used as homes ... are public record
and not exempt from disclosure,"
wrote James McAdams, the Director
of the Florida Property Tax Oversight
Program, in a bulletin to property
appraisers obtained by the St. Petersburg
After the Times approached Wells
through its legal counsel, he provided
the records only because Nicolette listed
them on his campaign disclosure form.
But he refused to disclose the records
of officials requesting the exemption or
redact any questionable information.
"I don't want to get into the redacting
business. That's not what I do," said
Wells, according to the Times.
The Times also approached Olson,
who agreed to provide the records with
addresses removed in some cases.
Nicolette agrees the records should
be public. "I have absolutely no
problem with anybody having any of the
information, because I'm running for
office," he said, according to the Times.
Source: St. Petersburg Times
2 The Brechner Report August 2008
ACCESS RECORDS CONTINUED
SARASOTA COUNTY- Venice
public officials admitted to deleting
e-mails due to a misunderstanding
about Public Records Law
Some council members deleted
e-mails after forwarding them to the
clerk's office. They assumed this
satisfied their duty to retain documents
under the Public Records Law.
Under an agreement approved by
the council two years ago, however,
the sender not the city clerk is the
"Remember that as an individual
user, you are responsible for
maintaining your e-mails in accordance
with state laws, specifically retention
requirements. The e-mails are
not backed up by the (Information
Services) department, nor do they stay
in the media account," said City Clerk
Lori Stelzer in an e-mail to council
members obtained by the Venice
The clerk's inbox is expunged every
two weeks, and e-mails among council
members on the publicly-available city
e-mail system expire every two months.
Council members agreed to discuss
the matter with the city attorney.
Source: Venice Gondolier Sun
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the Florida Association of Broadcasters, the Florida
Society of Newspaper Editors and the Joseph L
Court rules White House e-mails
are not subject to FOIA requests
WASHINGTON A U.S. district judge
ruled that the White House's Office of
Administration does not have to comply
with FOIA and make public internal
documents about the disappearance of
District Judge Colleen Kollar-Kotelly
said the Office of Administration "lacks
the type of substantial independent
authority" that would bring it under FOIA,
and is exempt because it performs mostly
Three months after public-interest
group Citizens for Responsibility and
Ethics in Washington sued to find out
what happened to White House e-mails,
the White House announced it would no
longer comply with FOIA though it had
done so for over 20 years.
But Justice Kollar-Kotelly said past
compliance is "insufficient by itself' to
subject it to FOIA requirements.
"We are disappointed in the ruling
and believe the judge reached the wrong
legal conclusion," said CREW's executive
director Melanie Sloan in a story by The
Anne Weismann, chief counsel for
CREW, said CREW intends to appeal.
Source: The Washington Post
IRS must disclose audit reports
WASHINGTON A federal judge ruled
that the IRS must produce unredacted
copies of audit reports to a Syracuse
University professor who requested regular
reports over 30 years ago.
Syracuse School of Management
Professor Susan B. Long first requested
IRS statistics in 1974. She obtained a
court order to enforce the request two
In mid-2004, the IRS stopped
Long obtained two more orders in
2006, but the IRS ignored them.
"We'd go in and say, 'Hey, we've got
a consent order,' and the IRS would do
nothing," Long said, according to The
Reporters Committee for Freedom of the
The IRS claimed it was exempt from
Long's request under a FOIA exception
for documents about the "deliberative
Judge Marsha Pechman of the Western
District of Washington said the IRS
waived that argument three decades ago
when it failed to raise it during Long's
Source: The Reporters Committee for
Freedom of the Press
Lawyer granted access to
officials' e-mails for $300,000
DUVAL COUNTY A circuit judge makes it virtually impossible to lift the
ruled that a Fernandina Beach lawyer can curtain of Harry Shorstein's political
obtain one million to two million e-mails machine," said White, according to the
allegedly revealing illegal campaigning Florida Times-Union.
- for $300,000 upfront. But the Plotkin, however, said White is on a
burdensome cost likely means the State "fishing expedition," according to the
Attorney's Office will not have to answer Times-Union.
the open records request.
Circuit judge Brian Davis ruled
attorney Wesley White is entitled to the
e-mails, which White claims may show
Assistant State Attorney Jay Plotkin
and State Attorney Harry Shorstein
used their positions in the Duval
County Courthouse to campaign or seek
"The potential cost involved in
dealing with the State Attorney's Office
Shorstein previously provided White
thousands of pages of material from
Plotkin's and his computer for $4,400.
Davis threw out White's lawsuit
against Plotkin, and said Shorstein is
responsible for providing the requested
White intends now to seek the e-mails
of only two deputies, Kathy Weintraub
and Bill Hodges.
Source: Florida Times-Union
The Brechner Report U August 2008
University of Florida
Brechner Center for Freedom of Information
3208 Welmer Hall, P.O. Box 118400
Gainesville, FL 32611
Permit No. 94
UF UNIVERSITY of
Knowing the psychology of
Public records requests involve more than just paper,
data, laws and processes. They involve people. Real
humans with feelings, fears and motivations.
Record requesters can harness the power of psychology
to get information from government officials on deadline
when agencies choose to ignore the law. Consider some
of these techniques developed from persuasion research
in psychology, marketing and advertising, particularly
the work of Dr. Robert Cialdini, author of "Weapons of Dave C
People are more likely to do what you want if they don't hate
your guts. So offer sincere compliments, smile, and dress well.
Related to this is outgroup
The bias, where people will be
B k more hostile toward those
ack P age they view as outgroups (e.g.,
By Dave Cuillier the media). Disassociate
yourself from yellow
journalists, spammers and identity thieves. Find a well-respected
person in the agency to introduce you to others to break the ice.
Being a nice person is always good, but being a nice person
with authority is even better. For example, in an experiment I
conducted earlier this year, I sent letters to all the police agencies
and school districts in Arizona requesting records some student
journalists were analyzing for stories. A third of the agencies got
an "aw, shucks" friendly letter, a third got a neutral letter (the
Reporters Committee for Freedom of the Press letter, at http://
www.rcfp.org/foiletter/generate.php), and a third got a legalistic
threatening letter (Student Press Law Center letter, at http://www.
The threatening letter resulted in 40 percent more compliance
than the other two letters. It appears that clerks looked at the
threatening letter and forwarded it to the agency attorneys, who
then responded as required by law. When they got the friendly
letter, they were more likely to blow it off.
Other examples of using authority include having the request
letter co-signed by the publisher or attorney, teaming up with
other organizations, or getting the state's attorney general to
weigh in. Also, emphasize the benefits of disclosure (public good,
access can yield results
appearance of openness, etc.) and the costs of secrecy
(public mistrust, lawsuit, or listing agencies that lost in
court and the attorney fees and penalties involved).
People respond to peer pressure. "Boy, all the other
towns in the county provide this information. I wonder
why it isn't open here?" Compile a list of agencies in
your state or in the country that provide the information.
uillier Write a story about it to tell the public, interviewing the
agencies that comply. Nobody wants to appear deviant.
When you give something to someone, they feel obliged
to reciprocate, often beyond what you gave them. That's why
businesses offer free samples.
One reciprocation-based technique is the "bombard-then-
retreat" tactic. Ask, for a lot and then cut it in half. "Can I see
all the e-mails sent by city employees over the past five years,
please?" After the clerk gasps and thinks of all the work involved
in fulfilling the request, say, "OK, how about just the city
manager's e-mails for the past four months?" You are giving up
something, so they feel compelled to reciprocate.
Once people commit to something, they have a difficult time
saying "no." Get the official to say "yes," and then you'll likely
get commitment for something bigger. This ratcheting or low-
balling strategy is the reverse of "bombard-then-retreat." "Can
I see what a blank police incident report form looks like? Great.
Now can I see what a completed incident report looks like?
Super. What does it look like in your computer system? That's
neat. How about copies of reports electronically for the past
month? Thanks. While you're at it, might as well just copy the
past two years!"
We shouldn't have to use psychology to get a public record. If
it's public, it's public. But if suing is not an option, and timeliness
is important, consider some of these techniques for getting what
you need when you need it.
David Cuillier is an assistant professor ofjournalism
at the University ofArizona and chairman of the Society of
Professional Journalists'Freedom of Information Committee.
The SPJFOI FYI blog is at http://www.spj.', !- .'!I.. !-1 .'.. ,-, ,'.