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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: December 2008
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Bibliographic ID: UF00090012
Volume ID: VID00108
Source Institution: University of Florida
Holding Location: University of Florida
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THE


BRECHNER


REPORT

Volume 32, Number 12 m 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
December 2008

Florida Supreme Court rejects false light


TALLAHASSEE Florida does not
recognize false light invasion of privacy
claims, held the Florida Supreme Court.
In a duo of cases, the Court held
because aggrieved individuals can
sue under libel and defamation laws,
false light claims are
superfluous. PRan T V
In a case against PR IVl
Jews for Jesus, the court
issued a 37-page opinion
saying false light could potentially chill
free speech.
"Because the benefit of recognizing the
tort, which only offers a distinct remedy
in relatively few unique situations, is
outweighed by the danger of unreasonably
impeding constitutionally protected
speech, we decline to recognize a cause of
action for false light invasion of privacy,"
wrote Justice Barbara Pariente.
Edith Rapp, the stepmother of a Jews
for Jesus employee, sued the group after


it published an article claiming she was
affiliated with it.
A separate ruling by the Court upheld
the 1st Circuit Court of Appeal's decision
to throw out a case against the Pensacola
News Journal. Contractor Joe Anderson
sued after the Journal
C published a story allegedly
C Y implying he murdered
his wife, whom he shot
unintentionally while hunting. Authorities
ruled the shooting was accidental.
Anderson was awarded $18 million by the
lower court.
"Today the Court shut the courthouse
door to every Floridian who is falsely
accused by a newspaper when they
publish words that are literally true but
carefully crafted to include thinly veiled
accusations of wrongful conduct," said
Anderson, according to the Journal.
"It's a big deal to everybody in the
media, not only a victory for us," said


DHS expands border searches
WASHINGTON The Department of least implicitly recognized there were
Homeland Security now allows agents to some First Amendment restrictions
search and copy electronic materials at the on reading and copying documents,"
border without suspicion. said Shirin Sinnar, a staff attorney with
Before changing its policy in July 2007, the Asian Law Caucus, according to
Customs and Border Patrol agents needed The Post. "It's disturbing now that
probable cause to conduct a search, the government has jettisoned that
The latest change in July 2008 lets policy in favor of one that violates First
agents detain electronic devices and Amendment rights."
documents for any period of time and copy The new DHS policy also allows CB
them with no suspicion. agents to share data obtained during
Searches of laptop computers could a search with other law enforcement
reveal "a massive amount of private agencies if there is suspicion of illegal
information such as personal e-mails, behavior.
financial data or confidential business At worst, other law enforcement
records," said Electronic Frontier agencies could theoretically turn this
Foundation staff attorney Marcia Hofmann, policy "into a loophole" and obtain
according to The Washington Post. information for which they ordinarily
The DHS said it changed its policies to would need probable cause or reasonab
combat terrorism and be more transparent. suspicion, said Georgetown University
Critics, though, say the law was changed law professor David D. Cole, according
without adequate public input, to The Post.
"For 20 years the government has at Source: The Washington Post


IP







le


Journal President and Publisher Kevin
Doyle, according to the Journal. "Justice
prevailed."
Source: Pensacola News Journal and
The Reporters Committee for Freedom of
the Press


Court to rule

on ownership
SARASOTA The Florida
Department of Law Enforcement
asked the court to decide who
owns software used in machines to
determine DUI defendants' blood-
alcohol content.
The ruling affects whether the
defendants can examine Intoxylizer
8000 software code for anything that
might cause a false positive.
The defendants claim if the state
owns the software, it must disclose the
code under the Public Records Law.
The
FDLE, ACCESS
however,
says the RECORDS
code is a
confidential trade secret owned by the
manufacturer, CMI Inc. of Kentucky.
The software purchase contract
licenses the FDLE to use the software.
CMI already facing fines of
over $2 million for failing to comply
with Sarasota and Manatee county
judges' orders to turn over the code -
fears disclosure could harm business
by telling its competitors how the
machines work.
"You might as well just give their
company away," said CMI attorney
Jarrod Malone, according to the
Sarasota Herald Tribune.
CMI is still fighting the issue in
appellate courts.
Source: Sarasota Herald Tribune


A






ACCESS RECORDS


School district ordered to disclose information


LAKELAND A circuit judge ordered
the Polk County School District to turn
over the names, phone numbers, addresses
and dependents' names of the nearly
13,000 employees receiving health care.
The PCSD unsuccessfully argued
the information was protected under the
1996 Health Insurance Portability and
Accountability Act.
Some PCSD personnel were
uncomfortable with copy salesperson Joel
Chandler's request for the information.
It is "an assault on personal
information that serves no public good,"
said Polk Education Association President
Marianne Capoziello, according to The
Ledger (Lakeland).
Capoziello sent thousands of teachers


an e-mail saying Chandler would use the
information for marketing.
In response to a letter from State Sen.
Paula Dockery, R-Lakeland, asking the
office to investigate whether employees
should be exempt from disclosing such
personal information, the Attorney
General's Office sided with Chandler.
While medical information is
protected, "there is no clear statement
that extends to the name, address, age or
other non-medical information of such
participants," wrote Assistant Attorney
General Lagran Saunders. "When doubt
exists as to whether a particular document
is exempt from disclosure under Florida's
Public Records Law, the exemption is
to be narrowly construed and any doubt


Panel makes recommendation


TALLAHASSEE Soon, Floridians
may be able to see and request
corrections to information state agencies
gather about them.
The Fair Information Practices Act,
proposed by the Commission on Open
Government, would also require agencies
to justify the need for the information.
The proposal would also enable foster
children to obtain DCF records including
medical records after they turn 18.
Further, most DCF records would be


available to the public with personally-
identifying and sexual abuse information
removed.
Social security numbers will be
removed from documents except for
businesses that need it for legitimate
reasons such as credit checks and identity
verification.
A final report on the recommendations
will be submitted to Gov. Charlie Crist by
the end of the year.
Source: Sebring News-Sun


resolved in favor of public access."
Chandler said he should not have to
disclose his plans for the records. "It's
no one's business what I plan to do," said
Chandler, according to The Ledger.
Polk County Circuit Judge Roger Alcott
also ordered the PCSD to pay Chandler's
attorneys' fees.
Chandler also filed a contempt of court
order request after the PCSD violated the
order by disclosing Chandler's name in a
mass e-mail to employees.
Legislators are considering a "fix" to
protect employees' privacy, said State
Sen. Mike Fasano, R-New Port Richey,
according to the St. Petersburg Times.
Source: The Ledger (Lakeland) and the
St. Petersburg Times

Venice records

woes continue
SARASOTA- The Venice City Council
allegedly used code names for city
officials, hand-delivered memoranda, and
used private citizens to evade the Public
Records Law, according to documents
filed in Sarasota County circuit court.
Anthony Lorenzo, a citizen suing
the city and a dozen current and former
officials, filed the motion to access the
phone records of council members Sue
Lang and John Moore and Mayor Ed
Martin.
The motion says the City Council and
airport advisory board members used five
private citizens to relay information on
airport plans.
The citizens, according to the motion,
used a code based on Disney's "Snow
White and the Seven Dwarfs" to hide
communications. One member was
referred to as "DC" for "Doc," and another
was called "BL" for "Bashful."
City Council officials denied they
used the references to bolster secrecy.
"It sounded like a fun way to talk about
it," said City Council candidate Thomas
McKeon, according to the Sarasota
Herald Tribune.
The council dismantled the airport
board in September.
Lorenzo's lawsuit alleges the officials
violated the Public Records and Open
Meetings laws by using private computers
to send e-mails discussing public business.
Source: Sarasota Herald Tribune


2 The Brechner Report U December 2008


Court hears arguments in

"fleeting expletives" case
WASHINGTON The Supreme expletives" policy consistently.
Court heard arguments in FCC v. Fox, a While the 2nd U.S. Circuit Court of
case about the use of indecent four-letter Appeals invalidated the policy in 2006
words on television, for inconsistent application, it did not
The Fox case centers on the FCC's address any First Amendment issues.
2004 policy of fining stations for The FCC appealed to the Supreme
"fleeting expletives" one-time, Court, which considered whether the
accidental uses of four-letter words, policy violated administrative law.
The FCC FIR ST However, First Amendment concerns
implemented F I1 would be implicated if the Court
the policy AMENDMENT determined the FCC had the authority
after three to ban "fleeting expletives."
celebrities used offensive words during Audio recordings of oral arguments
live awards broadcasts in 2002 and in Fox will be released next spring. The
2003. The FCC, however, said it would Court rejected C-SPAN's request to
not fine the stations for those slips, release them immediately.
Television networks then sued the Source: The Reporters Committeefor
FCC for failing to apply its "fleeting Freedom of the Press






ACCESS MEETINGS


SAO clears

council

members
CAPE CORAL Two council
members did not violate the Open
Meetings Law when they discussed a
graph of budget information, according to
the State Attorney's Office.
In a letter to the SAO, a citizen
accused council members Pete Brandt
and Bill Deile of discussing the budget
outside an open meeting.
"Although we can certainly understand
why a complaint was brought to us, based
upon the statements made at the council
meeting (May 5), we have determined
that the evidence is insufficient to prove
that an offense occurred," wrote Assistant
State Attorney Dean Plattner to Brandt
and Deile.
The complaint was based on
comments made by council member
Dolores Bertolini at an open council
meeting suggesting that Brandt and Deile
met privately before the meeting to create
the graph.
"The resolution of this matter is just as
I expected because I was confident that
there had been no Sunshine violation,"
said Brandt, according to the Cape Coral
Daily Breeze. "The investigation that
was called for was a waste of taxpayers'
money."
Source: Cape Coral Daily Breeze and
News-Press

THE
BRECHNER
REPORT
Brechner Center for Freedom of Information
3208 Weimer Hall, P 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
Alison Parker, Production Assistant
The BrechnerReport 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 Endowment


City makes plans after Open

Meetings violations


FORT WALTON BEACH The
city is developing plans to keep a
committee's decisions from being
negated after the city attorney found it
violated the Open Meetings Law for
seven years.
The Development Review
Committee violated the law by
improperly holding closed-door
meetings, according to city attorney
Toni Craig.
The DRC, which has met since
2001, consists of city department
representatives who work with
developers during the planning
process.
Under state statutes, the DRC's


actions on 136 development applications
could be negated.
Craig developed a "cure plan"
that would require the DRC to divide
the applications into three groups to
determine how they should be treated.
Under the plan, the DRC would
reconsider some of the projects during
new meetings open to the public. Other
projects would require City Council
approval again. Completed projects,
however, could not be readdressed.
"We need to move beyond the
pointing of fingers and fix it," said
Mayor Mike Anderson, according to the
Daily News.
Source: Daily News


ACCESS RECORDS CONTINUED

Chairman says requests must


go through attorney
THE VILLAGES A coalition requested
chairman said all public records requests wrote to Tl
must be reviewed by an attorney. Although
Will Pruitt, chairman of the Early consistent
Learning Coalition of Lake County, issued having "a t
the order to the group's executive director, review the
Lesha Buchbinder, after The Villages of the infoi
Daily Sun requested public meetings Foundatioi
minutes and budget information, according 1
"As a best practice, all public records that the pet
requests are vetted through legal counsel record."
as a way to ensure that the records being Source:


ire permissible," Buchbinder
he Sun.
;h Pruitt's order is likely
with the Public Records Law,
hird person or an attorney"
requests could delay release
rmation, said First Amendment
n director Adria Harper,
to The Sun. "It's an extra step
rson has to deal with to access a

The Villages Daily Sun


Lawsuit threat prompts release


TAMPA The Lowry Park Zoo
released records on animal purchases,
sales, trades, transfers and donations
almost four months after Tampa's News
Channel 8 requested them and only then
after the news channel threatened to sue
for their release.
The records show 227 animal
transactions among the zoo, its CEO,
Lex Salisbury, and Safari Wild, which is
Salisbury's private exotic-animal park
in development. Among the animals
transacted were rare white rhinoceroses
and an African forest buffalo.


Zoo policy requires the Zoological
Society's board chairman, Fassil
Gabremariam, to approve any animal
transactions in advance. Gabremariam
also sits on Safari Wild's Conservation
Foundation board.
The news channel filed a public records
request because the city of Tampa owns
Lowry Park Zoo and its animals.
After the news channel's reports
became public, the city of Tampa began
auditing the zoo's management and
transactions.
Source: The Tampa Tribune


The Brechner Report U December 2008




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BRECHNER
REPORT
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December 2008


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Florida Supreme Court extinguishes false light
In two cases heard the same day, the Florida Supreme amid curiae, urged the Court to reject false light.
Court joined a growing number of jurisdictions in The Court agreed because of the substantial overlap
unanimously rejecting the false light invasion of privacy between the torts. Both can be premised upon truthful
tort, saying false light duplicates defamation and likely statements implying falsity and allow plaintiffs to recover
impedes free speech. for reputational and emotional distress. The only notable
Before Jewsfor Jesus, Inc. v. Rapp and Anderson v. difference, said the Court, is false light requires a statement
Gannett Co., Inc., the Court never considered false light be "highly offensive."
substantively. False light first appeared in the early 1980s Defamation law, said the Court, is fairly certain.
in Florida appellate courts, but no case upheld a judgment False light's "highly offensive" requirement, however,
for the plaintiff. Florida's single-cause-of-action rule Deanna K. creates[] moving target whose definition depends on the
says litigants suing based on false or defamatory speech Shulman specific locale in which the conduct occurs or the peculiar
must sue for defamation not other torts. sensitivities of the day" and therefore "runs the risk of
In 2001, the landscape of the tort began to change. In Heekin chilling free speech because the type of conduct prohibited is not
v. CBS, P,. ',,, .i. Inc., the 2nd District Court of Appeal held entirely clear."
false light claims could stem from true speech. The plaintiff Moreover, defamation by implication when truthful
The claimed a "60 Minutes" statements give rise to a defamatory impression is constrained
B k Pbroadcast, though true, falsely by privileges and defenses such as a short statute of limitations,
ack P age implied he beat his wife and pre-suit notice, and other constitutionally-mandated privileges.
By Deanna K. .\/nt/nui children. A flood of false light False light, which lacks similar constraints, might "persuade
litigation ensued, including plaintiffs to circumvent these safeguards in order to ensure
Anderson and Rapp. recovery," according to the Court.
InAnderson, the Pensacola News-Journal truthfully reported The Court quashed Rapp to the extent the 4th Circuit reinstated
Joe Anderson accidentally killed his wife while hunting. the false light claim. It also quashed the portion of the appellate
Anderson claimed the article falsely implied he murdered his ex- decision affirming dismissal of the defamation claim, saying
wife and got away with it. The jury awarded Anderson roughly defamation can be based on reputational damage in the eyes of a
$18.3-million the largest verdict against a news organization "substantial and respectable minority of the community."
in Florida history. In October 2006, the 1st District Court of Rapp, said the Court, rendered moot the statute of limitations
Appeal held the two-year statute of limitations for defamation issue inAnderson. The Court also rejected Anderson's argument
actions also applied to false light. It reversed the judgment as that it could not retroactively abolish a cause of action because it
time-barred and asked the Florida Supreme Court to decide which had never recognized false light. The Court also disapproved of
statute of limitations should apply to false light. Heekin to the extent it assumed the false light tort existed.
Shortly after, the 4th District Court of Appeal decided Before Rapp, the media faced false light claims based on true
Rapp. Edith Rapp sued Jews for Jesus for defamation and false speech and could not rely on defamation defenses and privileges.
light based on an account by her stepson in a Jews for Jesus These suits were amorphously described by plaintiffs and difficult
newsletter. The court affirmed dismissal of the defamation to anticipate or avoid. Rapp confirms suits based on false speech
claim, but it reinstated the false light claim because a "major must be brought as defamation and that constitutionally developed
misrepresentation" of a person's religious briefs might be "highly protections, privileges, and defenses of defamation law will apply.


offensive. In reinstating the claim, it asked the Flonda Supreme
Court to determine whether false light existed in Florida.
In March 2008, the Court heard argument in both cases.
Several media organizations and First Amendment groups, as


Deanna K. Shullman is a partner in Thomas & LoCicero
PL South Florida office. The firm represented the amici curiae
in both cases.




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